[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EXAMINING RECENT REGULATORY AND
ENFORCEMENT ACTIONS OF THE
MINE SAFETY AND HEALTH ADMINISTRATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 3, 2011
__________
Serial No. 112-8
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Lynn C. Woolsey, California
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Carolyn McCarthy, New York
Tim Walberg, Michigan John F. Tierney, Massachusetts
Scott DesJarlais, Tennessee Dennis J. Kucinich, Ohio
Richard L. Hanna, New York David Wu, Oregon
Todd Rokita, Indiana Rush D. Holt, New Jersey
Larry Bucshon, Indiana Susan A. Davis, California
Trey Gowdy, South Carolina Raul M. Grijalva, Arizona
Lou Barletta, Pennsylvania Timothy H. Bishop, New York
Kristi L. Noem, South Dakota David Loebsack, Iowa
Martha Roby, Alabama Mazie K. Hirono, Hawaii
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
[Vacant]
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Lynn C. Woolsey, California,
Todd Rokita, Indiana Ranking
Larry Bucshon, Indiana Donald M. Payne, New Jersey
Trey Gowdy, South Carolina Dennis J. Kucinich, Ohio
Kristi L. Noem, South Dakota Timothy H. Bishop, New York
Dennis A. Ross, Florida Mazie K. Hirono, Hawaii
Mike Kelly, Pennsylvania George Miller, California
[Vacant]
C O N T E N T S
----------
Page
Hearing held on March 3, 2011.................................... 1
Statement of Members:
Payne, Hon. Donald M., a Representative in Congress from the
State of New Jersey, questions submitted for the record.... 50
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia, prepared statement of.......... 57
Rokita, Hon. Todd, a Representative in Congress from the
State of Indiana, questions submitted for the record....... 51
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Woolsey, Hon. Lynn, ranking minority member, Subcommittee on
Workforce Protections...................................... 3
Prepared statement of.................................... 13
Submissions for the record:
Feb. 24, 2011, grand jury indictment against Hughie
Elbert Stover...................................... 5
Slide, ``FMSHRC Case Backlog Scenarios''............. 48
Statement of Witnesses:
Main, Hon. Joseph A., Assistant Secretary of Labor, Mine
Safety and Health Administration........................... 14
Prepared statement of.................................... 17
Additional submission: ``Disposition of Complaints Filed
Under Section 105(c) of the Mine Act''................. 48
Responses to questions submitted......................... 52
EXAMINING RECENT REGULATORY AND
ENFORCEMENT ACTIONS OF THE
MINE SAFETY AND HEALTH ADMINISTRATION
----------
Thursday, March 3, 2011
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:06 a.m., in
room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Rokita, Bucshon,
Kelly, Woolsey, Payne, Kucinich, and Miller.
Also present: Representatives Capito and Rahall.
Staff present: Kirk Boyle, General Counsel; Casey Buboltz,
Coalitions and Member Services Coordinator; Ed Gilroy, Director
of Workforce Policy; Marvin Kaplan, Professional Staff Member;
Barrett Karr, Staff Director; Ryan Kearney, Legislative
Assistant; Brian Newell, Press Secretary; Molly McLaughlin
Salmi, Deputy Director of Workforce Policy; Ken Serafin,
Workforce Policy Counsel; Linda Stevens, Chief Clerk/Assistant
to the General Counsel; Loren Sweatt, Professional Staff
Member; Joseph Wheeler, Professional Staff Member; Aaron
Albright, Minority Deputy Communications Director; Tylease
Alli, Minority Hearing Clerk; Daniel Brown, Minority Staff
Assistant; Jody Calemine, Minority Staff Director; Brian Levin,
Minority New Media Press Assistant; Jerrica Mathis, Minority
Legislative Fellow, Labor; Celine McNicholas, Minority Labor
Counsel; Richard Miller, Minority Senior Labor Policy Advisor;
Megan O'Reilly, Minority General Counsel; Julie Peller,
Minority Deputy Staff Director; and Michele Varnhagen, Minority
Chief Policy Advisor and Labor Policy Director.
Mr. Walberg [presiding]. A quorum being present, the
subcommittee will come to order. Good morning. And welcome to
the Subcommittee on Workforce Protections.
Let me also welcome to our subcommittee our distinguished
colleagues from West Virginia, Mrs. Capito, who will be joining
us, and Mr. Rahall. They are most welcome. And without
objection, they will be permitted to join and participate in
our hearing this morning. And I hear no objection.
During today's hearing, we will take a close look at some
recent regulatory and enforcement actions of the Mine Safety
and Health Administration.
I wish to thank Secretary Main for the time he has taken to
be with us today.
Mine safety is a shared goal that continues to develop and
improve. In 1969, a great year, my high school graduation, the
Coal Mine Safety and Health Act was enacted to provide a
comprehensive legal framework to protect workers in above-
ground and underground mines. In 1977, Congress passed the
Federal Mine Safety and Health Act, which created MSHA.
The Mine Act established several important safety
requirements, including a mandate that inspections must occur
twice a year for surface mines and four times a year for
underground mines. Additionally, coal miners must perform their
own safety inspections at the start of each shift, as well as
weekly and monthly safety inspections.
Congress has taken steps in recent years to strengthen mine
safety laws, most notably with the 2006 Miner Act. The strong,
bipartisan efforts in 2006 required MSHA to conduct an overhaul
of its penalty policies and also led to increased penalties for
the worst offenders. Despite the progress that has been made,
more must be done to protect those workers.
Last April's tragedy at Upper Big Branch mine forever
changed the lives of the families and community of Montcoal,
West Virginia. This horrific event will forever serve as a
stark reminder of the need to remain vigilant in providing
strong and effective safety protections for America's miners.
Although nearly a year has passed, several investigations
continue to search for the cause of our nation's worst mining
tragedy in four decades. While we are awaiting the findings of
these investigations, it is vital we allow the results of the
investigations to shed light on the--in this crisis so we can
pursue the right reforms in a responsible way.
I know many of us are frustrated by the delay and anxious
to act. I recognize the sense of urgency to move forward with
mine safety reform. Chairman Kline and I share that urgency.
That is why we are here today.
Improving miners' safety must consider--improving miner
safety must consider the efforts already underway within MSHA.
Since the explosion at Upper Big Branch, MSHA has developed a
series of reforms geared toward enhancing mine safety through
existing law. These initiatives include changes to the pattern
of violations process and emergency temporary standard on rock
dusting and new regulations on miner exposure to coal dust.
However, if there is one thing we know, it is the strongest
laws on the books cannot protect miners if the agency charged
with enforcing those laws fails to do so. An article in today's
Charleston Gazette reveals a 2010 report by your administration
written just days before the Upper Big Branch tragedy. The
report as described by the Charleston Gazette, ``details
serious enforcement lapses, including incomplete inspections
and inadequate enforcement actions.'' I am troubled by this
report and hope you can provide greater details during today's
discussion.
We have learned in recent years that the cause of workers'
safety is best advanced when we work together. We have a
responsibility to pursue common-sense rules that protect
workers and hold bad actors accountable for violating the law.
That is the work this subcommittee will pursue. And I hope
we can perform with you in this effort.
At this time, I would like to recognize my colleague from
California, Lynn Woolsey, the senior Democratic member of the
subcommittee, for her opening remarks.
[The statement of Mr. Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections
Good morning and welcome to the Subcommittee on Workforce
Protections. During today's hearing, we will take a close look at some
recent regulatory and enforcement actions of the Mine Safety and Health
Administration.
I wish to thank Secretary Main for the time he has taken to be with
us today. Your knowledge and experience on these matters is extremely
valuable, and we appreciate your efforts as well as those of the
administration staff.
Mine safety is a shared goal that continues to develop and improve.
In 1969, the Coal Mine Safety and Health Act was enacted to provide a
comprehensive legal framework to protect workers in aboveground and
underground mines. In 1977, Congress passed the Federal Mine Safety and
Health Act which created MSHA.
The Mine Act established several important safety requirements,
including a mandate that inspections must occur twice a year for
surface mines and four times a year for underground mines.
Additionally, coal miners must perform their own safety inspections at
the start of each shift, as well as weekly and monthly safety
inspections.
Congress has taken steps in recent years to strengthen mine safety
laws, most notably with the 2006 MINER Act. The strong, bipartisan
efforts in 2006 required MSHA to conduct an overhaul of its penalty
policies and also led to increased penalties for the worst offenders.
Despite the progress that has been made, more must be done to
protect these workers. Last April's tragedy at Upper Big Branch Mine
forever changed the lives of the families and community of Montcoal,
West Virginia. This horrific event will forever serve as a stark
reminder of the need to remain vigilant in providing strong and
effective safety protections for America's miners.
Although nearly a year has passed, several investigations continue
to search for the cause of our nation's worst mining tragedy in four
decades. We are all awaiting the findings of these investigations. It
is vital we allow the results of the investigations to shed light on
this crisis so we can pursue the right reforms in a responsible way.
I know many of us are frustrated by the delay and anxious to act. I
recognize a sense of urgency to move forward with mine safety reform.
Chairman Kline and I share that urgency. That is why we are here today.
Improving miner safety must consider the efforts already underway
within MSHA. Since the explosion at Upper Big Branch, MSHA has
developed a series of reforms geared toward enhancing mine safety
through existing law. These initiatives include changes to the pattern
of violations process, an emergency temporary standard on rock dusting,
and new regulations on miner exposure to coal dust.
As with any policy proposal, questions and concerns remain.
However, I am encouraged the administration is taking advantage of the
tools already at its disposal in an effort to strengthen safety for
miners. I look forward to learning more, Secretary Main, about these
and other efforts underway at the administration.
We have learned in recent years that the cause of worker safety is
best advanced when we work together. We have a responsibility to pursue
commonsense rules that protect workers and hold bad actors accountable
for violating the law. That is the work this subcommittee will pursue
and I look forward to collaborating with my colleagues on this effort.
At this time, I would like to recognize my colleague from
California, Lynn Woolsey, the senior Democratic member of the
Subcommittee, for her opening remarks.
______
Ms. Woolsey. Chairman Walberg, thank you for holding this
timely hearing on mine safety. I also want to welcome
Congressman Nick Rahall, who is on the panel today, who you
have agreed should have a voice because he represents West
Virginia's 3rd District where Upper Big Branch is located.
He has been there for the families since the day of the
explosion, helping them every step of the way. Congressman
Rahall is from the heart of coal country and a recognized
leader on mine safety. And we are honored to have him here
today, along with Congresswoman Capito.
Last year, Mr. Chairman, the committee held three hearings
on mine safety. In February, we examined causes for and
solutions to the growing backlog of mine safety appeals, which
has impaired MSHA's ability to act in a timely manner against
chronic violators. Six weeks later on April 5, 2010, a massive
explosion ripped through the Upper Big Branch mine, killing 29
miners over a two-mile area. It was the largest United States
coal mine disaster in the past 40 years.
Six weeks after that, this subcommittee traveled to
Beckley, West Virginia to hear from the miners and the families
of the victims. Witnesses testified about the lack of
ventilation. They testified about coal dust accumulation so
thick you couldn't see in front of your hand, a long wall
mining machine that operated with a ball of flame on its
cutting head, a culture of retribution against anyone who
raised safety concerns and a system of advanced notice that
tipped off underground miners to correct violations before MSHA
inspectors could get underground.
A gentleman, Gary Quarles, was one of our witnesses and
testified that when MSHA came on-site, staff radioed miners
underground to warn them, ``We have got a man on the
property,'' which was code to correct the condition or direct
the inspector's attention away from deficiencies. Mr. Quarles'
testimony was validated by the U.S. Attorney's recent
indictment charging Massey's security director with allegedly
making false statements about his practice of training and
directing guards to provide advanced notice of mine inspection.
Mr. Chairman, I would like to include that indictment in
the record for this hearing.
[The information follows:]
------
Mr. Walberg. Without objection, it will be included.
Ms. Woolsey. This committee reviewed legislation 7 weeks
later, which included the Labor Department's recommendations
and the intelligence we gathered in Beckley. As this bill was
marked up, it further captured views of academics, industry and
labor.
It authorizes MSHA to issue subpoenas in investigations and
inspections. It mandates the temporary closure of mines with a
pattern of significant violations until they improve their
safety management systems. It makes the sanction under pattern
of violations more remedial and less punitive.
It requires chronic violators who are placed on pattern of
violations to sustain improved safety performance for 1 year
instead of 90 days under current law. It updates underground
coal mine safety standards, makes it a first instance felony to
knowingly violate a safety standard which exposes a miner to
significant risk or injury or death, strengthens whistleblower
protections and deters legislation designed only to delay
enforcement.
Mr. Chairman, this is a detailed list, but it is absolutely
necessary if we are going to adequately protect miners who are
being considered cogs in a wheel to make the energy and metals
our nation needs. Instead, they are the mothers, they are the
fathers, the community and church leaders, little league
coaches and youth mentors. It our moral obligation, Mr.
Chairman, to make sure our laws protect and value their lives.
It is also an imperative that we bring MSHA and OSHA into
the 21st century. Mr. Chairman, this committee visited the
Coalburg mine in West Virginia. And we learned firsthand of the
hazards and protections needed by miners. It was overwhelming.
We need this committee, under your leadership to go down in
a mine and get the total feel of what this is all about because
it is pretty overwhelming. And if you didn't think you were
going to be protected, you would have your heart in your throat
every minute that you were doing the work. So I hope that this
year we can find common ground to advance legislation that the
Department of Labor has requested and legislation that our
nation's miners deserve.
With that, I yield back.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member,
Subcommittee on Workforce Protections
Chairman Walberg, thank you for holding this timely hearing on mine
safety.
I also want to welcome Congressman Nick Rahall, who represents West
Virginia's 3rd District where Upper Big Branch is located. He has been
there for the families since the day of the explosion, helping them
every step of the way.
He is from the heart of coal country and a recognized leader on
mine safety, and we are honored to have him here today along with
Congresswoman Capito.
Last year, the Committee held 3 hearings on mine safety. In
February we examined causes for and solutions to the growing backlog of
mine safety appeals, which has impaired MSHA's ability to act in a
timely manner against chronic violators.
Six weeks later, on April 5, 2010, a massive explosion ripped
through the Upper Big Branch Mine, killing 29 miners over a 2 mile
area. It was the largest U.S. coal mine disaster in the past 40 years.
Six weeks after that, this subcommittee traveled to Beckley, West
Virginia to hear from miners and families of victims.
Witnesses testified about:
the lack of ventilation;
coal dust accumulations so thick you couldn't see in front
of your hand;
a long wall mining machine that operated with a ball of
flame on its cutting head;
a culture of retribution against anyone who raised safety
concerns;
and a system of advance notice that tipped off underground
miners to correct violations before
MSHA inspectors could get underground.
Gary Quarles (Kwor-els) testified that when MSHA came on site,
staff radioed miners underground to warn: ``we've got a man on the
property''...which was code for correct the condition or direct the
inspector's attention away from deficiencies.
Mr. Quarles (Kwor-els) testimony was validated by the U.S.
Attorney's recent indictment charging Massey's security director with
allegedly making false statements about his practice of training and
directing guards to provide advance notice of mine inspections. Mr.
Chairman, I would like to include that indictment in the record for
this hearing.
This Committee reviewed legislation seven weeks later which
included the Labor Department's recommendations and the intelligence we
gathered in Beckley. As this bill was marked up, it further captured
views of academics, industry and labor.
It:
authorizes MSHA to issue subpoenas in investigations and
inspections;
mandates the temporary closure of mines with a Pattern of
significant Violations until they improve their safety management
systems;
makes the sanction under Pattern of Violations more
remedial and less punitive;
requires chronic violators who are placed on pattern of
violations to sustain improved safety performance for 1 year, instead
of 90 days under current law;
updates underground coal mine safety standards;
makes it a first instance felony to knowingly violate a
safety standard which exposes a miner to significant risk of injury or
death;
strengthens whistleblower protections; and
deters litigation designed only to delay enforcement.
Mr. Chairman, this is a detailed list, but it is absolutely
necessary if we are going to adequately protect miners. Miners are not
simply cogs in a wheel to make the energy and metals our nation needs.
They are mothers and fathers, community and church leaders, Little
League coaches and youth mentors. It is our moral obligation to make
sure our laws protect and value their lives.
I hope that this year we can find common ground to advance
legislation that the Department of Labor has requested and our nation's
miners deserve.
______
Mr. Walberg. Thank you.
Pursuant to committee rule 7(c), all members will be
permitted to submit written statements to be included in the
permanent hearing record. And without objection, the hearing
record will remain open for 14 days to allow questions for the
record, statements and extraneous material referenced during
the hearing to be submitted for the official hearing record.
Ms. Woolsey. Without objection.
Mr. Walberg. It is now my pleasure to introduce our
distinguished witness. The Honorable Joseph A. Main was
confirmed as Assistant Secretary of Labor for Mine Safety and
Health on October 21, 2009. Mr. Main has been a coal miner, a
mine safety advocate for over 40 years.
Mr. Main worked for the United Mine Workers of America in
various positions from 1974 to 2002, including 22 years as the
administrator of the UMWA's occupational health and safety
department. Prior to his nomination, Mr. Main worked as a mine
safety consultant.
Welcome, Mr. Secretary. You are now recognized to provide
your testimony. And, as is the custom here with a director
being in the place and you being our only witness, we will
afford you a greater latitude for your time and testimony. But
please leave us time as well for questioning. Thank you.
STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY, MINE
SAFETY AND HEALTH ADMINISTRATION
Mr. Main. Thank you, Mr. Chairman, Representative Woolsey,
members of the subcommittee, Congressman Rahall. I do
appreciate the opportunity to be here today to update you on
mine safety and health, report on MSHA's actions since the
April 5th explosion at the Upper Big Branch mine, that
tragically took the lives of 29 miners, and discuss why,
despite MSHA's extraordinary efforts in the wake of the Upper
Big Branch disaster, that legislation is still needed to fully
protect our nation's miners.
Since I last testified before this committee, we have made
significant progress in MSHA's investigation into the Upper Big
Branch explosion. The underground portion of the investigation,
which has been extensive, is nearing completion.
Based on the evidence we have gathered so far, it appears
that a low volume of methane or methane fuel from natural gas
provided the fuel for the initial ignition on or near the face
of the tailgate side of the long wall shear or cutting machine.
Small methane ignitions are not uncommon in coal mines, but
when proper safety measures are followed, these ignitions are
generally controlled or extinguished. Our preliminary analysis
show, however, that at Upper Big Branch, the small ignition was
not contained or quickly extinguished. Instead, a small methane
ignition transitioned into a massive explosion fueled by an
accumulation of coal dust that propagated the blast.
While it is likely to be several months before MSHA can
provide a final report on the cause or causes of the Upper Big
Branch disaster, we know already that explosions in mines are
preventable and that a workplace culture which puts health and
safety first will save lives and prevent tragedies.
I have a deep respect for those who choose mining as a
career. That is the occupation I chose when I was 18 years old.
Mining is critically important to our economy. And I believe
that a commitment to safety is fully compatible with a thriving
industry.
MSHA has worked hard in the wake of the Upper Big Branch
tragedy to encourage operators to live up to their obligations
to provide a safe and healthful workplace. We are using every
tool at our disposal to make that happen.
One of our most effective enforcement tools has been our
``impact inspections''. Since April of 2010, MSHA has conducted
220 impact inspections at mines with special concerns. We have
conducted these impact inspections at times off-shift, taking
hold of phone lines to prevent advanced notice and covering key
parts of the mine as quickly as we can before hazards are--can
be hidden or covered up.
Another important post-Upper Big Branch enforcement action
was MSHA's decision for the first time ever to seek federal
court injunction for a pattern of violation. Shortly after we
filed the action, the mine operator announced it was
permanently closing the mine and agreed to a court order that
ensured the safety of the miners during the shutdown and
protected the livelihood of the displaced miners.
We have also taken important actions to improve the broken
pattern of violations program. We adopted new screening
criteria, used those criteria to put 14 mines on a potential
pattern of violation and published a proposed rule which would
address flaws in the current rule to meet the intent of the
statute. MSHA has taken a number of other steps in the wake of
the Upper Big Branch tragedy, including accelerating additional
regulations such as the emergency temporary standard on rock
dust and providing targeted compliance guidance.
Upper Big Branch also highlighted the importance of
addressing the growing backlog at the Federal Mine Safety and
Health Review Commission. And we are taking several actions to
attack that problem.
MSHA cannot be in every mine, and mine operators must find
and fix hazardous conditions, whether MSHA is there or not. I
believe that many mine operators want to do this and want to
run safe mines. In order to assist mine operators, MSHA has
undertaken extraordinary education and outreach efforts.
I have traveled the country speaking to miners, operators,
mining organizations and associations and listening to their
ideas and concerns. We have been forming alliances with
industry stakeholders. We have been working together with the
industry and miners to improve consistency in enforcement of
mining standards and implementing new programs such as the
``Rules-to-Live-By'' that targets the most common mining deaths
and ``Safety Pro-in-a-Box'', a valuable Web-based compliance
resource. And I am committed to continuing those partnerships.
This subcommittee has a long history of standing up for the
nation's miners. It has never subscribed to the myth that
mining fatalities are an inevitable aspect of the business. I
hope that you will again stand up for miners and pass new mine
safety legislation. It is time to move such legislation.
Since Upper Big Branch, we have learned that there are
systemic flaws in the law that only Congress can fix. And the
administration supports legislation that gives MSHA the
enforcement tools it needs to ensure that all mine operators
live up to their legal and moral responsibility to provide a
safe and healthful workplace for all miners.
Let me mention just a few of the areas, among others, that
merits your attention. There is only so much we can do through
regulations. Second, MSHA should revise MSHA's injunction of
authority. We need to fix the broken pattern of violations
system. We have used the provision and learned that the process
may be slower than needed to protect miners. That is in regard
to the ``section 108'' injunctive action that we have just
initiated for the first time. New legislation should provide us
sufficient authority to act as soon as we believe protecting
miners' safety and health requires immediate action.
Third, legislation should strengthen the criminal
provisions of the Mine Act. No mine operator should be risking
the lives of its workers by cutting corners on health and
safety. But for those who knowingly engage in such practices,
we need to send them a clear message that their actions will
not be tolerated.
Finally, new legislation must ensure miners are fully
protected from retaliation. Miners know best the conditions in
their mines. But as some surviving miners and family members
have reported, some miners keep critical information to
themselves because they fear they will lose their jobs of they
speak up.
I look forward to working with the committee to find the
best way to accomplish our shared goal of providing our
nation's miners the safety and health protections that they
deserve. With that, I thank you very much.
[The statement of Mr. Main follows:]
Prepared Statement of Hon. Joseph A. Main, Assistant Secretary of
Labor, Mine Safety and Health Administration
Chairman Walberg, Ranking Member Woolsey, and Members of the
Subcommittee:
I appreciate the opportunity to appear here today on behalf of the
U.S. Department of Labor, Mine Safety and Health Administration (MSHA)
to update you on mine safety and health, and report on the actions we
have taken since the April 5, 2010 explosion at the Upper Big Branch
(UBB) mine in West Virginia that needlessly took the lives of 29
miners. That accident was the worst mining disaster since the creation
of MSHA by the Mine Act and the deadliest coal mine disaster this
nation has experienced in forty years. The need to rethink how we
approach mine safety and health to protect miners took on a new urgency
for all of us following that disaster. I also want to discuss why,
despite MSHA's extraordinary efforts in the wake of the UBB disaster,
legislation is still needed to fully protect our nation's miners. The
safety and health of those who work in the mines in this country is of
great concern to President Obama, Secretary of Labor, Hilda Solis, and
me. The Secretary has articulated a forward-looking vision of assuring
``good jobs'' for every worker in the United States, which includes
safe and healthy workplaces, particularly in high-risk industries, and
a voice in the workplace. At MSHA, we are guided by that vision.
I arrived at MSHA over a year ago with a clear purpose--to
implement and enforce the nation's mine safety laws and improve health
and safety conditions in the nation's mines so miners in this country
can go to work, do their jobs, and return home to their families safe
and healthy at the end of every shift. Having been involved in mining
since the age of 18, I have a deep respect for those who choose mining
as a career. I have spent most of my life with miners, mine operators
and mine safety professionals. I think we can all agree that mining is
critically important to our economy, and I believe most understand our
collective responsibility to ensure that effective health and safety
standards are in place and are followed to prevent injury, illnesses
and death.
I know that it is possible for a mine to be a safe place to work
for miners and a profitable business for operators. Most of the
industry shares this belief and make the commitment to safety because
it is not only the right thing to do, but the smart thing to do as
well. Injuries, illnesses, and fatalities have for too long taken a
toll on the mining industry and its workers.
In addition, at MSHA, we are concerned with the economic and
technological feasibility of our regulations and the Mine Act requires
us to take that into consideration when developing regulations. We also
understand that MSHA's effective enforcement of the law should create a
level playing field, so that operators who play by the rules and
provide safe mine conditions do not have to compete against operators
that cut corners on safety.
MSHA will continue to partner with the industry to ensure that
miners are safe and healthy and that the industry and those who derive
their livelihood from the industry--especially those that play by the
rules--continue to thrive.
Upper Big Branch Investigation
Since I last testified before this Committee in July 2010, we have
made significant progress in MSHA's investigation into the Upper Big
Branch explosion. As many of you are new to the Committee, I would like
first to provide a brief overview of the investigation and then provide
an update on what we have learned so far.
The investigation team was named just after the explosion, but
there was a delay in getting the team members underground due to
unstable conditions and the need to provide a safe working environment
for the investigators. The investigative team began its physical
inspection at the end of June 2010. The underground investigation--
which has been extensive--is nearing completion. At the time of my July
2010 testimony before the Committee, we had conducted approximately 100
interviews. Now, we have held over 260 witness interviews. MSHA has
dedicated 108 enforcement personnel to the investigation, which
includes 10 mine dust survey teams, 7 mapping teams, 3 electrical
teams, 1 ventilation team, 1 geology team, 1 flames and forces team, 1
evidence collection team, and 1 inspection activities team. In
addition, 45 technical support personnel are performing testing and
other technical activities related to the investigation. In July, we
had just begun our physical investigation, but now our investigative
teams have combed through every inch of the accessible parts of the
mine. To date, over 2,000 pieces of evidence have been collected and
tested, including equipment, and gas, dust and other samples. While
there still is more work to be done, MSHA is committed to completing
the investigation in as timely a manner as possible.
I want to note for the Subcommittee that while MSHA is
investigating the accident with the purpose of understanding what
caused the accident and working to prevent future, similar accidents,
the Department of Justice (DOJ) also opened its own investigation into
possible criminal wrongdoing almost immediately after the explosion.
The United States Attorney for the Southern District of West Virginia
requested that MSHA delay its announced public hearings and the release
of witness transcripts so as not to jeopardize the separate criminal
inquiry by DOJ. MSHA is honoring that request in recognition of the
President's instruction for the Department of Labor to work with DOJ to
ensure that every tool in the federal government is available in the
investigation of the accident.
Since the outset we have conducted the investigation in as
transparent a manner as possible. MSHA has established an ``Upper Big
Branch Single Source Page'' on our website at: http://www.msha.gov/
PerformanceCoal/PerformanceCoal.asp to keep the public informed about
the accident. We post as much information as we can on that site.
In addition, we have honored our commitment to the families to keep
them as informed as we can about the findings of the accident
investigation team to date. To the extent that we have been able to
release information, my colleagues and I have met with the families of
the victims on a number of occasions to bring them up to date on the
status of the investigation. The last family briefing was on January
18, 2011, when we met with the families for almost four hours. The
Solicitor of Labor, M. Patricia Smith, joined us at this briefing. In
addition, consistent with Section 7 of the Mine Improvement and New
Emergency Response Act of 2006 (MINER Act), MSHA family liaisons are in
continuous contact with the families.
Finally, we have held regular briefings for the Committee
leadership and your staff on the status of the investigation and our
preliminary findings.
When I testified in July, there was little I could tell you about
what caused the explosion at Upper Big Branch. In the intervening
months, we have learned a tremendous amount. Based on the evidence that
the team has gathered to date, it appears that a low volume of methane
and/or methane fuel from natural gas provided the fuel for the initial
ignition on or near the face of the tailgate side of the longwall
shearer, or cutting machine. Small methane ignitions are not uncommon
in coal mines, but when proper safety measures are followed, these
ignitions are generally controlled or extinguished by proper
ventilation and safety equipment on the longwall shearer, such as
mining bits and water sprayers.
The evidence to date shows, however, that at Upper Big Branch, the
small ignition was not contained or quickly extinguished. The analysis
also indicates that a small methane ignition transitioned into a
massive explosion, fueled by an accumulation of coal dust that
propagated the blast.
While the investigation is not complete, and it is likely to be
several months before MSHA is able to issue a report, we do know
already that explosions in mines are preventable. Most importantly, we
know that a workplace culture, which puts health and safety first, will
save lives and prevent tragedy.
MSHA's Actions after Upper Big Branch
The tragic events of April 5th at the Upper Big Branch mine changed
the lives of many people--the miners' families, their communities,
miners around the country, and those of us at the Department of Labor
dedicated to mine safety. When the Secretary and I sat with the
families on those fateful days following the explosion, waiting for
news of their loved ones, we committed to them that MSHA would act
boldly to prevent another similar disaster. President Obama reiterated
that promise when shortly after the accident he told the nation that
``we owe [those who perished in the UBB disaster] more than prayers. We
owe them action. We owe them accountability.''
The MSHA team has pulled together and worked hard to make good on
the President's promise. We are using every tool at our disposal,
including ramped-up enforcement, targeted upgrades in our regulations,
and education and outreach.
One of our most effective enforcement tools has been our impact
inspections. After the disaster at the Upper Big Branch mine, MSHA
began to conduct strategic ``impact'' inspections at coal and metal and
nonmetal mines that needed greater attention. From April 2010 through
January 2011, MSHA has conducted 220 ``impact'' inspections at mines
with special concerns. These inspections are ongoing. Targeted mines
are those that could be at risk of explosion, mines with poor
compliance histories or histories of accidents or fatalities, or mines
with other warning signs, such as efforts to cover up violations,
hotline complaints or mines with poor examination procedures. MSHA has
also conducted inspections at mines with recurring problems dealing
with adverse physical conditions or that have a poor safety culture.
From testimony at the field hearing conducted by the Education and
Workforce Committee in May 2010, we heard the different ways in which
operators would use their knowledge of our inspection methods to hide
the violations they were committing. Therefore, MSHA has conducted
these impact inspections in a way that has shaken up even the most
recalcitrant operators. MSHA has shown up at their mines during ``off
hours,'' such as evenings and weekends. In some cases, MSHA has taken
hold of the mines' phone lines upon arrival to prevent unscrupulous
operators from giving advance notice of the inspectors' presence at the
mine. Our inspectors have gone into those mines in force, with
sufficient personnel to cover the key parts of the mine quickly before
hazards could be hidden or covered up.
The results of the impact inspections have been significant. MSHA
inspectors have issued more than 4,100 citations and 380 orders for
violations of mine safety and health laws, rules and regulations during
these targeted inspections--and miners are safer because we conducted
those inspections. Some of the conditions and violations MSHA found
during ``impact'' inspections are quite disturbing. For example, in
July 2010, MSHA inspectors commandeered company phones during the
evening shift at a mine in Claiborne County, Tennessee, to prevent
surface personnel from notifying workers underground of MSHA's presence
on the property. Inspectors found numerous ventilation, roof support,
and accumulation of combustible materials violations. These types of
conditions potentially expose miners to mine explosions and black lung
disease. The operator was also mining into an area without necessary
roof support, placing miners at further risk from roof falls. In all,
MSHA issued 27 citations and 11 orders as a result of that inspection.
Unfortunately, the mine operator did not get the message. MSHA has
now conducted four ``impact'' inspections at the mine, based on its
ongoing compliance problems and apparent disregard for the law, and in
November 2010, the mine was issued a potential pattern of violations
notice. During the December 2010 ``impact'' inspection--after the
potential pattern of violations letter went out--inspectors issued four
very serious orders for accumulations of combustible coal dust of up to
24 inches in depth covering extensive areas where miners work and
travel, and for not properly maintaining a lifeline in the mine's
secondary escapeway. Coal and rock dust on the lifeline and reflective
markers would have made it more difficult for miners to effectively
escape to the surface in the case of an emergency. During the next
regular safety and health inspection at the mine on January 19, 2011,
MSHA found more violations for accumulations of combustible materials,
not maintaining proper clearance on a beltline, and inadequately
supported ribs--these violations required equipment to be shut down and
effectively closed the mine to production.
During another ``impact'' inspection in September 2010 at a mine in
Boone County, West Virginia, MSHA inspectors arrived in the middle of
the evening shift and prevented calls to warn those working
underground. Inspectors found that the mine was making illegal deep
cuts into the coal seam. In addition, many areas of the working section
were without adequate ventilation while these excessive cuts were being
taken, exposing miners to the risk of explosion and black lung. The
inspection revealed that air readings were not being taken during the
work shift and that mine ventilation was being short-circuited. In one
particular area, suspended coal dust was so thick it was difficult to
see the massive continuous mining machine in operation nearby. Again,
these are conditions that can also result in explosions and cause black
lung. The inspector issued 11 closure orders during that inspection.
Another important post-UBB enforcement action was MSHA's decision--
for the first time since the passage of the Mine Act--to seek a federal
court injunction under the Mine Act's ``pattern of violation''
injunction section. We filed the injunction action against Massey
Energy's Freedom Energy Mining Company's Number 1 mine located in Pike
County, Kentucky. The mine had a pattern of violations of mandatory
safety and health standards, which in our view, constituted a
continuing hazard to the health and safety of the miners working at the
mine. From July 2008 to June 2010, MSHA had issued 1,952 citations and
81 orders to the company for violating critical standards including
improper ventilation, failure to support the mine roof, failure to
clean up combustible materials, failure to maintain electrical
equipment, and failure to conduct the necessary examination of work
areas.
Shortly after we filed the action, the operator announced it was
permanently closing its mine and moving the miners to other mines it
owned in the area. It did agree to a court order that ensured the
safety of miners during the shutdown process and protected the
livelihood of the displaced miners.
MSHA has also evaluated other mines for possible injunctive relief,
and we will continue to use this remedy when mines are engaged in a
pattern of violations and miners are faced with continuing hazards to
their safety and health. Yet despite a successful result, the case
against Freedom Energy demonstrates that injunctive court actions will
not always proceed quickly or result in instant relief.
MSHA has also issued new enforcement policies and alert bulletins
addressing specific hazards or problems to ensure that miners and mine
operators understand important enforcement policies. We have addressed
topics such as the prohibition on advance notice of MSHA inspections,
mine ventilation requirements that protect against mine explosions, and
the right of miners to report hazards without being subject to
retaliation.
I have said that the pattern of violations, or POV process, is
broken and MSHA is committed to fixing it. In the provision's 33-year-
old history, no mine has ever been subject to the full measure of the
law contemplated by Congress. While we were reviewing the POV process
prior to the UBB disaster, the incident heightened the urgency of
moving forward with reforms. Therefore, in October 2010, we put new
screening criteria in place for the pattern of violations or POV
program. This was a critical first step in reforming the current POV
program to give the Agency an effective enforcement tool to address
mines that repeatedly violate safety and health standards.
Notifications of potential pattern of violations have been sent to 14
mines using these new screening criteria and procedures, with
additional mines still under review for potential pattern of violation
actions.
The next step in fixing the broken POV program was the proposed
revisions to the regulations. As promised, on February 2, 2011, we
published a proposed rule on POV, which would address flaws in the
current rule and reflect the intent of Congress when it wrote the POV
provisions, such as not limiting MSHA to looking at enforcement actions
that have resulted in final orders and eliminating the potential POV
process.
MSHA also accelerated action on several other regulatory actions
after UBB. In September 2010, MSHA developed and issued an Emergency
Temporary Standard for increasing the incombustible content of combined
coal dust, rock dust, and other dust in coal mines to minimize the
potential for coal dust explosions. This ETS is based on research
findings and recommendations by the National Institute for Occupational
Safety and Health (NIOSH), within the Department of Health and Human
Services. As discussed above, we strongly believe that coal dust played
a role in the UBB disaster.
The UBB disaster highlighted the need to ensure that mine operators
take seriously their obligation to find and fix the hazards in their
mines, even when MSHA is not looking over their shoulders. In December
2010, therefore, MSHA published a proposed rule that would revise its
requirements for pre-shift, on-shift, supplemental and weekly
examinations of underground coal mines. The proposed rule would require
that operators identify and correct violations of mandatory health or
safety standards and review with mine examiners on a quarterly basis
all citations and orders issued in areas where examinations are
required. If implemented, this rule would reinstate requirements in
place for about 20 years following the passage of the 1969 Mine Act.
The UBB disaster also enhanced the urgency of our need to address
the backlog of cases at the Federal Mine Safety and Health Review
Commission (FMSHRC). We have taken a number of actions to attack this
problem. First, we are being good stewards of the supplemental
appropriations that Congress provided for the Department and FMSHRC to
reduce the backlog. The extra resources are helping us to resolve
cases, and we continue to explore ways in which we can reduce the
number of contested cases.
Last fall, I also launched a pre-contest conferencing pilot program
in 3 MSHA districts. The pilot program allows the mining industry to
meet on the local level with MSHA to resolve differences over citations
and orders before they become matters of litigation and add to the
backlog of contested cases. We are currently assessing the pilot
program to determine how we can improve consistency and implement the
conferencing program throughout MSHA to provide opportunities to
resolve disputes before litigation is necessary. Just last month, MSHA
held a stakeholder meeting with representatives from the coal and metal
and non-metal industries and labor to discuss the pilot project and
share ideas for an effective pre-contest process. Although it is too
early to see the impact, I believe an effective pre-contest conference
program could be an important tool in resolving cases.
Finally, the UBB disaster reinforced my concerns about MSHA's mine
emergency response capabilities. I had already ordered a review to
identify gaps in the system before UBB. Sadly, I saw many of those gaps
first hand at the UBB site, such as inadequate communications and
emergency equipment coordination.
MSHA has made major progress in this area. MSHA's new state-of-the
art mobile command center based in Pittsburgh is in service and nearing
full operational capability. The center will improve MSHA's capacity to
provide better communications, advice and guidance during a mine rescue
and recovery. At the UBB site, I had difficulty communicating with the
Department's headquarters and even with MSHA emergency response staff
who were in the vicinity of the mine. Our new center should help
correct these difficulties. In addition, MSHA is updating its
technology, developing standard operating procedures and implementing
more comprehensive command and control training for the MSHA district
personnel that would be responding to mine emergencies.
As a result of these improvements, we are better able to respond to
and manage mine emergencies, but as MSHA continues its thorough review
of emergency plans and procedures to identify and fix gaps in the
system, we know that more needs to be done. For example, some mine
operators do not have available mine emergency equipment and are not
prepared to quickly respond to emergencies. We are working with the
mining industry, state agencies, drilling companies and others to
identify areas for improvement in overall mine emergency response and
equipment needs.
Something that should not go unnoticed is that the 2006 MINER Act
greatly enhanced our mine rescue response to the Upper Big Branch
tragedy. The MINER Act improved the number, availability of and quality
of training of mine rescue teams.
I can tell you that I and the other mine emergency personnel
coordinating the rescue efforts at Upper Big Branch greatly appreciated
this improvement in mine rescue team strength and preparedness.
Education, Outreach and Compliance Assistance
As I said at the outset, I believe that most mine operators want to
run safe mines. In order to reach and assist these mine operators, MSHA
has ramped up its education, compliance assistance, and outreach.
First, we have made it a priority to educate mine operators,
contractors, miners, trainers and others about how to prevent injuries
and fatalities in mines. Let's remember that it was not just the Upper
Big Branch disaster that led to mining deaths in 2010. In total, 71
miners died on the job last year, compared to 34 in 2009. And most of
these non-UBB related deaths are the types that are recurring in the
mining industry. I have spoken to members of the mining industry and
those who train miners about the causes of these accidents and the
practices that can prevent them. We know how to prevent these deaths,
but more must be done to put that knowledge to work.
One way to put that knowledge to work is to ensure that the
industry is more proactive about safety. Operators should have
effective safety and health management systems in place, since these
are the best vehicles for establishing a culture of safety in mining
workplaces. These systems should be developed with everyone in the
company--from the CEO to those working in the mine. In October 2010,
MSHA held three public meetings, which highlighted the importance of
safety and health management systems in our nation's mines.
We also have had several successful, targeted education campaigns
last year. In early 2010, we launched a new program called ``Rules to
Live By.'' This is a fatality prevention initiative focusing on 13
frequently-cited standards in metal and nonmetal mining and 11
frequently-cited standards in coal mining that most commonly caused or
contributed to fatal accidents over a 10-year period. This effort
combines education and outreach on the front end, followed by enhanced
enforcement by MSHA. In November 2010, we initiated a second phase of
``Rules to Live By'' focusing on 9 coal safety standards aimed at
preventing other catastrophic accidents. We have posted information on
the ``Rules to Live By'' initiative and the training module used to
instruct inspectors on how to handle enforcement of the targeted
standards on the MSHA website to allow the mining industry to have
access to the training. This will also improve our consistency in
enforcing standards.
In December 2010, we published a safety alert called ``Watch Out!''
to draw attention to the potential dangers to miners posed by shuttle
cars, scoops, continuous mining machines and other equipment in
underground coal mines. Seventy underground coal miners have died from
being crushed or struck by this equipment since 1984--6 of them in 2010
alone. Without question, it is time to act to prevent these needless
deaths. A solution to prevent these deaths is the use of proximity
detection technology, which can warn miners when they are too close to
the mining equipment. The technology can also shut down the machine
before there is any harm to miners. Proximity detection systems are
already used in South Africa, and MSHA has approved 3 systems for use
in U.S. mines. MSHA plans to issue an Emergency Temporary Standard
requiring these detection systems on certain kinds of mining machines.
For metal and nonmetal mines, many of the citations MSHA issues are
for violations of equipment guarding. As a result, in 2010, MSHA
published ``Guarding Conveyor Belts at Metal and Nonmetal Mines,'' a
photo-illustrated PowerPoint guide that provides detailed compliance
information. The guide helps the metal and nonmetal mining industry
meet the requirements of MSHA's guarding standards on conveyor belts,
and enhances awareness of guarding compliance and miner protection for
both industry stakeholders and MSHA's metal and nonmetal enforcement
personnel. It supplements existing guarding guidance contained in
``MSHA's Guide to Guarding Equipment,'' and MSHA's existing program
policy manual. The new guide was piloted through several state
aggregate groups and distributed with the support of the National
Stone, Sand and Gravel Association (NSSGA).
Also in 2010, we initiated a resource page on our website for the
metal and nonmetal industry that includes a ``Compliance and Updates''
section. And just this year, MSHA released ``Safety Pro in a Box,'' a
resource intended to provide meaningful compliance assistance to small
and new operators in the aggregates industry. This safety tool box,
which provides helpful compliance guides, was suggested by the NSSGA
and developed with the association's assistance.
In addition, mine operators and contractors need to train miners
and mine supervisors on the conditions that lead to deaths and
injuries, as well as on measures to prevent them. This is an industry
in transition as new miners are replacing the aging workforce. MSHA is
working with the mining industry to help ensure that education,
training and knowledge transfer keeps pace with that transition and
does not undercut health and safety gains made over the years.
Moreover, to promote better understanding of the mining industry's
concerns with MSHA's enforcement program and to improve mine safety and
health, MSHA has entered into alliances with a number of mining
associations, including the NSSGA, the Industrial Minerals Association-
North America and the Portland Cement Association. MSHA's Administrator
for Metal and Nonmetal and I have met frequently with these groups and
with many state aggregate associations across the country about their
concerns. In addition, a joint technical committee was formed between
MSHA and the NSSGA to develop compliance assistance materials. MSHA
followed up on this committee's work by issuing Procedural Instruction
Letters (PIL) and Program Information Bulletins (PIB) to advise MSHA
inspectors and the mining industry on compliance.
MSHA is also teaming up with the Interstate Mining Compact
Commission, an organization which represents state mining agencies, to
coordinate a federal and state effort that promotes a culture of safety
and encourages mine operators to live up to their responsibilities to
provide safe and healthful workplaces, to fully comply with state and
federal requirements and to provide effective training for their
miners.
MSHA also meets on a periodic basis with mine operators to discuss
their specific concerns. On February 16, 2011, MSHA held stakeholder
meetings with representatives of the coal and metal and non-metal
industries, and labor. One concern we've heard from the industry is
about the consistency in the citations issued by MSHA's inspectors.
Consequently, we've taken several steps to address it, including a
review of enforcement actions to ensure that MSHA policies and
procedures are followed; a review of agency inspection procedures;
field inspection audits to improve inspections; training of CLR
representatives; and mandatory, comprehensive, refresher training for
all inspectors. In 2010, we developed a new two-week training program
for all MSHA field office supervisors to improve the quality and
consistency of enforcement. As previously noted, we are working on
establishing an effective pre-contest citation and order conference
procedure that will provide earlier opportunities to resolve disputes.
We also hope that the conferences will serve as learning experiences
for both operators and MSHA personnel so that discrepancies in
citations can be corrected going forward.
Eradicating Black Lung
On the health front, MSHA continues to move forward on its ``End
Black Lung--Act Now!'' initiative, which is a comprehensive strategy to
fulfill the promise made 40 years ago with the passage of the 1969
Federal Coal Mine Health and Safety Act to eradicate Black Lung.
According to NIOSH, in the past decade over 10,000 miners have died
from Black Lung disease. Black Lung still kills hundreds of former coal
miners each year and severely impairs the lives of many more; there are
alarming indications that it is on the rise, even in younger miners.
In December 2009, we launched Phase I of the initiative, which
includes education, outreach and enforcement. In October 2010, we
launched Phase II by publishing a proposed rule, which would address
shortcomings in the sampling process; lower the existing exposure
limits for respirable dust; take advantage of new technology for
measuring exposure--the continuous personal dust monitor; and expand
medical surveillance, so that miners can take proactive steps to reduce
hazardous exposures and better manage their health. On February 15,
MSHA concluded a series of public hearings held across the country on
this proposed rule, and we are encouraging all interested parties to
submit comments by May 2, 2011.
Need for Legislation
This Committee has a long history of standing up for our nation's
miners. It has never subscribed to the myth that mining fatalities are
an inevitable aspect of the business. I am joining the plea that
Secretary Solis made to you when she testified before the full
Committee last month--for you to again stand up for miners and pass new
mine safety legislation.
Almost one year has passed since we lost those 29 miners at Upper
Big Branch. We have learned much in that time. As I noted at the
outset, we have come a long way in our understanding of what happened
that day, and that understanding has allowed us for the first time in
recent weeks to share with you some of the preliminary analyses of our
investigative team.
We also have learned how to better use all of MSHA's available
tools and strategies to fully enforce the Mine Act--including targeted
enforcement, regulatory reforms and compliance assistance. The
strategies the Agency has used for its impact inspections have been
largely successful. In addition, its regulatory actions, if
implemented, will make operators more responsible for finding and
fixing violations and will highlight those mines with continuing
problems. Our extraordinary compliance assistance and outreach efforts
also will ensure that operators who want to do the right thing have the
tools they need to avoid violations and hazards.
To make MSHA truly effective in cracking down on serial violators
who seem indifferent to miners' health and safety, MSHA needs
additional tools that only Congress can provide. We need to change the
culture of safety in some parts of the mining industry, so that they
are as concerned about the safety of their miners when MSHA is not
looking over their shoulders as when MSHA is there--because MSHA cannot
be there all the time. The Administration supports legislation that
gives MSHA the enforcement tools it needs to ensure that all mine
operators live up to their legal and moral responsibility to provide a
safe and healthful workplace for all miners.
I am not asking the Committee to take up any particular bill. I
understand that this is a new Congress with new leadership. I am asking
that we work together across the aisle and across the branches to
address at least the following areas:
Pattern of Violations: There is a reason that no Administration--
Democratic or Republican--has figured out how to effectively apply the
current statutory POV program. It is broken and can be improved only so
much through regulation. For example, the provisions of the current POV
statute could potentially put some mines in POV status indefinitely
while being insufficient to ensure long-term change in other
circumstances. While we believe we are making significant improvements
to the POV program within the confines of the current statute, changes
to the law that provide MSHA the tools to engage in a long-term, more
remedial approach with chronic violators would be a significant
improvement to current law.
Injunctive Relief: The current law does not have a ``quick fix'' to
the safety of mines like the Freedom Energy Mine where MSHA for the
first time ever sought an injunction for a pattern of violation under
section 108 of the Mine Act to change a culture of non compliance that
threatened the safety and health of the miners. While MSHA was
successful in compelling the mine to implement additional safety and
health protections as a result of using section 108(a)(2), the current
statute could be simplified to help MSHA make its case. The lesson
learned is this: the litigation process using the existing tool may be
slower than needed to protect miners, and new legislation should
consider language that clearly provides the Secretary of Labor with
sufficient authority to act when she believes protecting miner safety
and health requires immediate action.
Criminal Penalties: Legislation should strengthen the criminal
provisions of the Mine Act. No mine operators should be risking the
lives of their workers by cutting corners on health and safety, but for
those who would engage in such a practice, we need to put a new weight
on the side of protecting the lives of miners. We hope and intend that
criminal prosecutions under an enhanced Mine Act would continue to be
rare. Now they are rare, however, because the bar for prosecution is
too high. We hope that with new legislation they will be rare because a
more serious law will provide a successful deterrent.
These enhanced criminal penalties should also extend to those who
provide advance notice of MSHA inspections. In the aftermath of UBB,
there were troubling reports of some operators providing advance notice
of an MSHA inspection in order to hide violations and conduct that put
miners at serious risk. This is an intolerable evasion of the law that
is all too common. Increasing existing criminal penalties for these
tactics would send a clear message that this behavior will not be
tolerated.
Whistleblower Protection: New legislation must ensure miners are
fully protected from retaliation for exercising their rights. Because
MSHA cannot be in every mine, finding every hazard every day of the
week, a safe mine requires the active involvement of miners who are
informed about health and safety issues and can bring dangerous
conditions to the attention of their employer or MSHA before these
conditions cause an injury, illness or death. Yet, as we heard from
miners and family members testifying at the Committee's field hearing
in Beckley, miners were afraid to speak up about conditions at Upper
Big Branch. They knew that if they did, that could lose their jobs,
sacrifice pay, or suffer other negative consequences.
The Mine Act has long sought to protect from retaliation those
miners who come forward to report safety hazards. But it is clear that
those protections are not sufficient, and many miners lack faith and
belief in the current system. Legislation that creates a fairer and
faster process is urgently needed.
Conclusion
Thank you for allowing me to testify before the Subcommittee. At
the end of the day, it comes down to this: MSHA cannot be at every
mining operation every shift of every day. There could never be enough
resources to do that, but even if there were, the law places the
responsibility of maintaining a safe and healthful workplace squarely
on the operator's shoulders. Improved mine safety and health is a
result of operators fully exercising their responsibilities. Taking
more ownership means finding and fixing problems and violations of the
laws and rules before MSHA finds them--or more importantly-before a
miner becomes ill, is injured or is killed. Mines all across this
country operate every day while adhering to sound health and safety
programs. There is no reason that every mine cannot do the same.
I look forward to working with the Committee to find the best way
to accomplish our shared goal of providing our nation's miners the
safety and health protections they deserve.
______
Mr. Walberg. Thank you for your testimony. And we look
forward to, indeed, working with you. That is our purpose, as
well as your purpose.
At this point, we will go to questioning from members. And
I will start by relinquishing that time to the chairman of the
full committee, Chairman Kline.
Mr. Kline. Thank you, Mr. Chairman, for the courtesy and
for yielding the time.
Mr. Main, this morning, as Chairman Walberg mentioned,
there is a story that was based on a report which MSHA
submitted to the Appropriations Committees in the House and the
Senate. And it is pretty damning when you look at it.
You have mentioned several times today and in previous
briefings and meetings that we have had that MSHA was, quote--
was using ``every tool at our disposal.'' And you asked here
just now for new legislation to give you more tools.
And yet, it seems, looking at this story, that there is--
the failure is not in having the right tools in the toolbox,
but in the people using the tools in the toolbox. And so, when
I looked at this--and I am embarrassed to admit that I hadn't
seen this report beforehand. But let me just go through a
couple of these. And I am going to be asking for your comment
on it.
It says that on March 25, 2010, MSHA submitted a mandated
report to the Senate Appropriations Committee on the activities
of MSHA's internal office of accountability. And here are some
findings:
Over the previous 2 years, according to the report, MSHA
auditors from the agency's accountability office found
inspectors in 20 of 25 field offices reviewed did not properly
evaluate the gravity and negligence of mine operator safety and
health violations. Supervisors in 21 of those 25 field offices
did not perform in-depth reviews to ensure that inspectors took
appropriate enforcement actions in accordance with MSHA
policies.
MSHA officials in 15 of the 25 field offices audited did
not adequately document inspections so that any enforcement
actions taken would stand up in court. Inspectors in four of
the field offices did not complete mandatory spot inspections
for mines that generated large amounts of explosive methane
gas. At an unspecified number of field offices there was a
``lack of comprehensive inspections of all areas of the mining
operation'' and inappropriate levels of enforcement issuances.
And then the story goes on to say that the findings mirror
those of numerous MSHA internal reviews conducted after major
mining disasters over the last 20 years as well as repeated
criticism from the Labor Department, inspector general and the
U.S. Government Accountability Office. So the question is can
you give us some indication, a, is this accurate, and, b, what
are you doing to address these? And what progress have you
made?
Mr. Main. Yes. I think the findings represent what the
findings were with regard to the audit that was conducted. And
I take for face value the--you know, the conditions that were--
or the findings that were described by the audit team or the
findings that existed.
I think to understand the prospective of what it means--if
you look back at the audits within MSHA over the last 10, 20
years, I think you are going to find problems that are
identified during audits, number one. Secondly, when I became
the assistant secretary in October of 2009, one of the things I
started looking quickly at was the audits that were being
conducted by MSHA and another change in the agency that
occurred, which was the new inspectors that were coming into
MSHA.
As a matter of fact, the day I took the job, I think we had
about half the inspectors that were hired since the Sago
disaster. And with the 2-year training cycle they go through,
had about 2 years experience under their belt. That was metal,
non-metal and coal averaged out across the board.
And you had a number of the new inspectors that were coming
on were replacing the supervisors in MSHA. MSHA is an aged
workforce, and, as we saw, the mining industry losing a lot of
experience during the--that era from probably early--or the
latter part of the early 2000s through this past decade, there
was a lot of change out in the agency.
And one of the things that I realized when I took this job,
that we had to do things different. And that was we needed to
create training programs that, instead of kept--we keep
identifying these problems, to try to figure out a way to fix
them. And to take into consideration the fact we had a lot of
new supervisors coming within--coming into these jobs in the
agency, that was a greater reason to do that.
So about June of last year, we implemented a new training
program for all MSHA supervisors for coal and metal and non-
metal. And it is a 2-week training that supervisors are going
through. I think we have about half of the metal, non-metal
inspectors through it as we speak. We are holding the coal
inspectors until we get through with some Upper Big Branch
duties that we have the ability to cycle those in.
But the short message is that, you know, I think these
problems existed. I think there is a number of problems like
this existed over time. And I think we had to put in place,
which we have, measures to train these problems out.
The second measure that I initiated was a complete review
of the MSHA inspection program, the policy and procedures. And
I have tasked our folks to look at everything that our
inspectors do to determine whether or not we are following
policies, whether or not the policies are clear and all these
internal audits and review--and there is quite a number of
them, if you look back over the last 10, 15 years--to make sure
that the systemic problems we are finding, that we train MSHA
inspectors as we put them through the cycles and the retraining
cycles.
But what is happening right now is that there is a crew
that is plowing through everything the inspectors do to try to
get some clarity to the job they do and to both use these to
retrain inspectors, but also to improve the consistency in what
we do in carrying out our job. Because one of the other
concerns that I heard from the first day I was here was the
consistency issue.
And so, to tackle a number of these, I mean, we just needed
to retool our system. So, you know, hopefully, as we look down
the road, the kind of systemic problems that we have seen from
these audits, that last one you spoke of and back over the
years, that we have put successfully a program in place that we
don't find these or find these kind of things.
Mr. Kline. Well, I hope that we move beyond hopefully and
are really doing this.
And my time has long expired. I apologize and yield back.
Mr. Walberg. Thank you, Mr. Chairman.
I turn now for 5 minutes of questioning to the ranking
member, Ms. Woolsey.
Ms. Woolsey. So, Mr. Secretary, for the record: yes or no,
haven't these findings in that report and their
recommendations--haven't they all received corrective actions
that were implemented?
Mr. Main. Yes, they were corrected at the time, once the
audits were conducted to fix that problem.
Ms. Woolsey. Okay.
Mr. Main. But I think, in a bigger picture, we looked at
this more broadly and to figure out a way that, you know----
Ms. Woolsey. I know. And I appreciate that. I just wanted
that for the record.
Mr. Main. Yes, that is correct.
Ms. Woolsey. That those findings absolutely they were
corrected immediately. Using that as our base, I mean, one of
the things we learned over the last 2 years on this
subcommittee is--and we have known, but we proved it with our
hearings--is that MSHA is really stretched to its outer limits
for legal authorities. And it is really important that we have
legislation that would better advance the culture of safety
with the sub-set of mining operators, who habitually violate
safety standards and put production ahead of safety.
So I would like to give you as much time as we can to
identify the specific areas in the Robert C. Byrd mine safety
bill that we wrote and introduced--and how would that have
helped? And how will it help?
Mr. Main. Well, I think there are a number of provisions in
the legislation that was introduced last year on the House side
that would help improve mine safety. And I just start with
these. What is it we know that we need to fix? For all of us
who attended the congressional hearings last year, both on the
House side and the Senate side, and particularly the field
hearing in Beckley, West Virginia, where families and miners
brought to light conditions and problems that existed with
regard to mine safety.
Ms. Woolsey. Right.
Mr. Main. I think there was a pretty healthy roadmap that
was laid out from just the information that was collected here
on the Hill. You know, it told a story about miners being
fearful of speaking out about conditions. It talked about
tactics where advanced notice was being provided underground to
the mine when inspectors would show up. It was a story about
violations that were not taken care of.
It was a story about when MSHA is not there, how the mine
law is applied differently. And when you look at--when you take
value from the information we--that we all, I think, saw at
that time, you understood that we needed to do something to
change the culture of the mining industry.
For those who decided that when no inspector was around,
that they would put their miners at greater risk and challenge
their health and their safety to make a profit, we have to do
something different. MSHA can't be there all the time. So how
do we deal with mine operators that act that way?
How do we give miners more courage to speak out about the
conditions that exist in the mines that they work at? You know,
since the Upper Big Branch tragedy, we have made a number of
these ``impact inspections''. We have made a number of them
where we have had to go in, we believe, to capture the phones,
to make sure that no notice went to the mining folks
underground so we could get a good view of what is really going
on.
And in some of those cases, I mean, we found situations
that you could have had a mine explosion at the snap of a
finger. I mean, we walk in a section and find the ventilation
controls down. That is ventilation controls that are needed to
dilute any methane that is liberating from the coal seam or to
control the coal mine dust that can cause both explosions or to
black lung disease. And there was intentional acts to operate
that way.
And, as you described in the one particular case, the
inspector walked up to this huge mining machine. There is so
much dust, they couldn't even see it. That is an indication
that we have a problem.
This happened after the Upper Big Branch tragedy, the case
that I am talking about and I think you may have referred to.
So I think there is a lot of things that we found that we have
got to take care of having mining operators who think about
operating that way to think differently. And you have to have
tools that are applied when MSHA is not at that mine.
And we have talked about the criminal provisions. We have
talked about the subpoena provisions.
Ms. Woolsey. Yes.
Mr. Main. We have talked about new rules that would better
protect miners who do speak out, protect their pay, their jobs,
their--you know, if they get placed in jeopardy. Those are a
number of things that I think are still important today.
Ms. Woolsey. So can you talk a little bit more about
subpoena power and why is that necessary?
Mr. Main. Well, let us just use a current case in West
Virginia. We have a state agency that has subpoena power that
is using that power to subpoena witnesses where we have an
accident investigation going on. We have to go to a public
hearing before we can ever have that kind of a power.
Information that we are able to get through the use of that
state subpoena is something we don't have. And I think a
reasonable person would look at it from the standpoint of why
doesn't the agency have it. And its lack thereof,--is that
really impeding the agency's ability to get the job done? And I
think the answer to the latter part of that question is, yes,
if the state wasn't there in this particular case.
Ms. Woolsey. Okay.
Mr. Walberg. Thank you for your testimony. Time is expired.
I will claim my 5 minutes of questioning here.
Mr. Main, I think going on from Chairman Kline's
questioning about the report that we saw in the paper today.
But your testimony states that MSHA has developed new 2-week
training program for MSHA field supervisors to improve the
quality and consistency of enforcement. Last year, the
Department of Labor's inspector general issued a report
critical of MSHA's ability to track training for inspectors.
How is the agency prepared to track training for all field
supervisors now?
Mr. Main. Yes. You know, one of the things that you--I
think your point about me, I am a find and fix kind of person.
And since I took this job October of last year, there have been
a number of deficiencies. And a number of these have occurred
over the years. The computer error that happened back, I think,
in--or 2007 with the POV program, some of the audits that date
back to--if we look back at Sago, Aracoma Alma Darby, Crandall
Canyon, deficiencies that are there.
And the I.G., we have been working with him closely for
them to work with us to help identify problems we have so we
can fix them. I think with regard to the report that you have
raised, every one of the recommendations they made we agree
with. And we have implemented different programs within MSHA to
make sure that we do have a good tracking system. We are taking
a look at how we do train, how we set up training programs.
We looked at the issues they raised about the missed
training. And that is something that we have agreed to fix as
well. So we agree with what they found and said we need to fix
it.
Mr. Walberg. And so, the process is in place now of
actually fixing that?
Mr. Main. Yes. Yes.
Mr. Walberg. Let me move to MSHA's recently announced--the
reinstatement of whistleblower at a mine in Puerto Rico. The
whistleblower program is already considered to be very strong.
And the reinstatement of this worker demonstrates that in this
instance, MSHA is working on behalf of miners. Can you tell the
committee how many whistleblower complaints were made last
year? In how many cases were workers reinstated? And how many
cases were deemed without merit?
Mr. Main. If you give me 1 second, I may----
Mr. Walberg. Sure, sure. And as you are looking----
Mr. Main. If I can't answer it today, I will try my best to
do that.
Mr. Walberg. Yes.
Mr. Main. If I can't, I promise I will send the information
to you.
Mr. Walberg. I guess, along that, as you are thinking
through the answer, how long does it take to resolve
whistleblower cases, on average? And does the whistleblower
office report directly to you?
Mr. Main. The whistleblower office is in the office of
assessments. And currently within MSHA, we have an evaluation
going on of our entire structure. And I will just start out
with that. Currently, yes, it is in the office of assessments,
which is below the office of the assistant secretary. And they
report through the office of assessments to us.
And we are looking at the entire infrastructure of how this
whole program of the special investigation program works, which
is all one program that is in the assessments program and
looking at how we can make that more efficient and more
effective. So it is currently there, but a review may change
that here, that we have ongoing. As far as the number of cases
that we have, I will probably have to get back to you and
provide you the update information on that.
Mr. Walberg. I would appreciate that. Let me go, in the
interest of time here. In fact, in the interest of time, we are
running out of it. And I want to abide by my own rules to start
this process. So we will come back to some of those questions.
At this point, let me yield 5 minutes to Congressman Rahall
from West Virginia.
Glad you are participating with our committee today.
Mr. Rahall. Thank you very much, Chairman Walberg.
Mr. Walberg. Go ahead. Okay.
Mr. Rahall. Okay. Thank you very much, Chairman Walberg. I
appreciate your allowing me to sit in with--on these hearings
today, which are tremendously important. I appreciate your
work, Chairman Kline's work, Ranking Member Woolsey and her
very kind comments and she and former Chairman Miller's visit
to Beckley, West Virginia shortly after the UBB disaster. And I
appreciate all the committee's deep concerns for our coal
miners, their health and safety and especially for those family
members that have not yet reached closure over this UBB
disaster.
Mr. Main, I appreciate you and Mr. Stricklin's work. He is
here accompanying you today--and all of MSHA's work. You have
come under a little criticism here in the latest reports that
have been released, but I think you responded very adequately
to the chairman's questions and the fact that you have--since
you have been on-board at MSHA, which is, what, a year now?
Mr. Main. A little over.
Mr. Rahall. A little over a year--you have had a lot of
work to do, a lot of changes to make, a lot of attitudes to
change, and a lot of philosophies to change as well. And I
commend you for the work you have been doing under some very
trying circumstances.
I did underscore something that was in your written
testimony. You make the point that, ``MSHA's effective
enforcement of the law should create a level playing field so
that operators who play by the rules and provide safe mining
operations do not have to compete against operators that cut
corners.''
Now, I think that is an important point. It is unseemly
that any operator would enhance their competitive advantage in
the world marketplace by cutting back on measures that ensure
the health and safety of their miners. But we have seen it
happen. And the good actors, those who abide by the law and
their workers, unfortunately, suffer as a result.
It is a delicate balance for you to target the bad actors
and ensure that companies with good records are not adversely
affected. And so, I am asking you, I guess--and you have
addressed the broken system of pattern of violations. And I
know in last year's Robert C. Byrd Mine and Health Safety Act
we tried to improve that process whereby good actors can work
their way off of any endangerment of being put on the POV.
What assurances can you provide those who are truly abiding
by the law who want to do the good thing for their workers and
have safety as their paramount concern? And that is the
majority of them, I might add, certainly, in my district. But
how can you assure them that we are going to address their
concerns in--as we move forward, both regulatorily and
legislatively?
Mr. Main. First off, I would like to thank you, Congressman
Rahall, for joining our rescue and recovery operations at Upper
Big Branch mine. You were there to provide a lot of moral
support for the families. And that meant a lot for those who
spent time with the families through the most difficult time of
their life. To have folks like Congressman Rahall, now Senator
Manchin and others there with us was--it was very helpful.
And I think that there are a number of us that have gone
through so many of these tragedies with families that
understand our core mission in life is really to find the
problems and fix them and make sure that we have mines in this
country where the miner can go to work every day, really not
worry about, you know, if he is going to make it through the
shift or she is going to make it through the shift and get home
at the end of the day. And that is our real objective here.
With regard to the actions we are taking, we have--I think,
went out of our way to really try to target--where it is that
we need to spend our energies doing what? After the Upper Big
Branch tragedy, you bet it shook me up. And I think it shook
everybody up in the mining industry to try to figure out how
could we at this time in our life have the worst mine disaster
in 40 years. And one of my responsibilities was to stay focused
on what it is we need to do and to make sure that we used the
tools that we had effectively in the places that we needed to.
And what we did with the impact inspection--I just wanted
to make sure that we were out there with our troops looking for
and spending the extra time at mines that had the most concern.
And the program that we initiated right after Upper Big Branch,
I think, has accomplished that. It has give me a level of
comfort that we have got a better handle on, you know, trying
to identify and spend the time at mines that we need to.
It is not a perfect system, but I think it is about as
close as, I think, we are going to get in terms of applying
that kind of attention. So, you know, out of 14,500 mines that
we have inspected, you know, we have responsibility for, we
have tried to focus on those that need the attention.
When I revamped the pattern of violation----
Mr. Walberg. I am sorry. The gentleman's time is expired.
I am sure we will have further questioning.
And I now move on and welcome the gentlelady from West
Virginia, Mrs. Capito, for questioning.
Mrs. Capito. Thank you, Mr. Chairman. Thank you for
allowing me to be a part of this committee meeting. I
appreciate it very, very much.
And I would like to thank the Secretary for being--always
having an open door and being willing to help me understand the
way he is moving forward with MSHA. He has been very
respectful, but also very quick to respond. And I appreciate
that.
Mr. Main. Thank you.
Mrs. Capito. I want to go--and we talked about this last
time we met a couple--last week--to the pattern of violation. I
was home last week talking to a lot of folks who are in the
industry trying to meet the standards of the new pattern of
violation. And just so I understand it correctly, understanding
that the backlog is and probably still remains to be a big
problem, but that is a problem you have identified and tried to
work on.
But also the fact that your new rule, as I understand it,
says that, not only do you fall into the pattern of violations
for violations that have been certified, that have been gone
through any kind of a grievance or an appeal kind of a process,
but also if you are cited for a violation and you still have--
as the operator, you have not--not be able to have judged
whether that is a viable or non-viable violation or the
strength of the violation. But even though you haven't had that
judgment yet, it still falls within the range and accumulates
to become one of the pattern of violations.
And I guess the question is this--do you feel that this
alleviates some kind of due process that people would have to--
you know, to repeal these, understanding that the appeal
process is very skewed and distorted and stalled, in some
cases. So what is your response?
Mr. Main. Yes, and maybe I can spin off of a question
raised by Congressman Rahall and answer your question in tandem
with that about the pattern of violation process. We have the
current process, which we have cleaned up some of the flaws
with it, under the current rules, which provides some
transparency to the industry to let them understand what the
rules are. And I am a firm believer in that. You know? They
need to know what the rules are so that we don't have mines
gravitating that way.
Under this current rule, there is a provision that we have
to use final rules for part of the determination. And I think
that gets to the crux of the problem that you are raising as to
an issue that is addressed in the proposed rule where we are
taking out that final rule as a requirement that we have to
meet.
And I will explain why we are doing that. When I first
started taking a look at the pattern of violation process, it
was one that, well, no mine in the United States had ever been
placed on an actual pattern as contemplated by this Congress
when they passed the law in 1977. Thirty-three years, no mine
had ever had that standard actually applied.
And that told me that the provision was broke as a start.
And we looked at the processes in place, and we found some
deficiencies in the way that the rules was applied and
sometimes how easy it was to get off. It wasn't as stiff of a--
it wasn't the kind of threat that Congress had recognized.
So we fixed, under the current rule, what we could, looked
forward to the statute. And what the statute told us is there
was no proposed pattern of violation to send out this notice in
advance. So we took that out. There was no indication that
Congress intended for us to wait for a citation to be finalized
before we applied the pattern. And I just saw some cases that
just came through about a week or so ago of 4 years ago of
pretty serious violations.
These had to wait 4 years before they become final order.
So we had a concern that we can't wait for years. We don't need
to be putting a mine on a pattern notice 4 years after they
racked up, you know, the violations when they may have become a
perfect mine by that time. You know? So----
Mrs. Capito. Not to interrupt, but my time is kind of
running out here.
Mr. Main. Okay.
Mrs. Capito. But would a better approach be to expedite
the--I understand--you know--expedite the backlog to make--you
know, and have us, maybe, write in there that, you know, these
have to be washed out in 40 days or 50 days or something of
that nature, take the most egregious ones first, you know, and
move those through the system first. You know? I understand you
don't want--you don't want these patterns of violations out
here for 4 years.
And the other thing, in case I run out of time, I would
like to say the transparency aspect is tremendous. I know that
you are going to be doing this on a Web site so that the
operators can follow, you know, where they are and how they are
falling into that. But if you could speak to the expediting the
backlog as a way to have final judgment made before they fall
into the pattern of violation.
Mr. Main. When I took this job in October of 2009, one of
the other things on my deck to look at was this backlog. And
unfortunately, we have a backlog that precludes a lot of
immediate action. There are so many violations stacked up,
80,000-some violations, because of this backlog, that it is an
impediment, I think, to get us to where you may want to go.
We have applied a lot of resources to fix the backlog. We
are appreciative of the money that Congress appropriated to
help do that. Even with the monies appropriated, it is going to
take us in a matter of, not months, but years to get the
backlog down and, I guess, to the number of programs going
forward, to cut and to--these contested violations, I think, is
work for the industry, for miners, for the government and all
of us.
Mr. Walberg. We will have to end the questioning. The time
is ended. But this is an issue we won't end here and need to
continue looking at it.
At this point, we will move to the ranking member of the
full committee, Mr. Miller.
Mr. Miller. Thank you very much, Mr. Main. Thank you for
being here. And I have sort of the same questions as Mrs.
Capito and Mr. Rahall have raised here. As I look at it, last
year, it took about 824 days to move a citation to final order
of an unwarrantable failure. That is like 3 years. I mean, that
is forever.
Mr. Main. Yes.
Mr. Miller. I also know that the inspector general, in
their September 29, 2010 recommendations recommended that you
do exactly, apparently, what you are doing. And that was to
evaluate the appropriateness of eliminating or modifying the
limitations on current regulations, including the use only of
final orders in determining the pattern of violation. So, you
know, we have this other report where they made the
recommendations and you met every one of those recommendations.
And that is sort of a test of whether or not the inspector
general is effective or not.
And here, you are doing it again. You are meeting his
recommendation, which is to think of another way of doing this,
because, clearly, those 80,000 citations are a way of gaming
the system.
Because they game the system, we had to put up $22 million
additional for people to deal with the backlog. The
appropriators did that, I think, last year in one of the C.R.s,
one of these things that comes through here every couple of
weeks now.
So we are chewing up taxpayer resources because they are
gaming the system. And the inspector general looks at this
system and says, you ought to go--you ought to move to a new
system. These citations--you took action here against somebody
who, from July 2008 to 2010--what the hell is the name of this
mine? Mr. Massey again--Massey's Energy--Freedom Energy Mining
Company's Number One.
Between 2008 and 2010, had 1,952 citations and 81 orders to
the company violating critical standards, including improper
ventilation, failure to support the roof in the mine, failure
to clean up the combustible materials, failure to maintain
electrical equipment, the failure to conduct the necessary
examinations of the workplace. I mean, how long are we going to
let these people--we are down to--you said there were 14,500
mines in--within your operation at MSHA. So we are down to
where there is about 14, 15, maybe 20 mines that are really in
this atmosphere.
So it is just a question of--I mean, I think we should
change the statute so that you don't have to work within a bad
system. But the fact of the matter--it is a very simple
decision for the Congress. Are we just going to continue to
empower rogue operations that endanger miners that are on
notice from thousands of citations that this is a dangerous
workplace?
Is the Congress going to sit here and say, we will just
wait for the next accident? Because, apparently, we can only
legislate if people die. It is the only way the Congress can
move. We get all our adrenaline pumped up here, and then maybe
we do something. But we don't do anything in between accidents.
And we now are on notice from the inspector general's
office, from your office, from the level of citations that we
have a relatively few number of mines that have decided it is
in their economic interest, their economic--whatever their
business plan is to game this system and put these miners at
risk. These miners are subsidizing their business plan with
their risk in the workplace.
This should not be a hard decision for the Congress of the
United States. You know, we keep saying, well, you know, there
is a lot of good operators. And Mr. Rahall is always pounding
me about this. And I agree. Why should those good operators
enable these people to play this system this way at the risk of
these miners? There is a question in there somewhere, and I bet
you can find it. [Laughter.]
Mr. Main. There are two points that I think you raised.
One, it was a Freedom Mine that we took the first Section 108
injunctive action against. And it was a mine that had amassed
nearly 2,000 violations over a 2-year period, over 80 orders.
And it had ownership, when we put this mine on this 108--or
took this 108 injunctive action--had ownership of the mine with
the most ``D'' orders in the United States out of 14,500 mines.
And to address the point that Congressman Rahall raised,
that is the kind of mine that we need to be dealing with. And
that is where we are putting our strategic attention to
identify mines like that and move in. No one, I don't think,
could tolerate, or should tolerate a mine with that kind of a
record. And I think we need to be active.
What we learned in that was that it takes time to do that.
And I don't want Congress to think we have this silver bullet
either that we can just decide today that we have an Upper Big
Branch that we need to deal with in that context and tomorrow
have that mine shut down. That was a lesson that we learned
from the experience of Freedom Energy.
And as far as the problem that we recognized a year ago----
Mr. Walberg. The gentleman's time has expired.
And we will move on now to Mr. Rokita.
Mr. Rokita. Thank you, Mr. Chairman.
Thank you, Mr. Main, for being here today. In a hearing
with Secretary Solis 2 weeks ago, on February 16th, I asked if
the Department of Labor and MSHA would make the underlying data
and assumptions associated with your respirable coal dust rule
available to stakeholders so that they can comment while the
rule is open so that we can have a better rule.
Mr. Main. Okay.
Mr. Rokita. The 10 business days came and went yesterday.
We got nothing in writing. You did meet with my staff. And you
said, it is not--you don't have access to the data. It is
NIOSH's data.
You did agree in that meeting--and I want to get it on the
record here--that you will help us get that data. And so, I
want to know if now you will agree to keep the rule open so
long as it takes so we can get that data because apparently no
one has really asked until I have been asking, I guess--so that
we can have a better rule at the end of the day. It is a yes or
no question. I am just trying to get your thoughts on it.
Mr. Main. Well, I think there is some confusion over the
data. And I know we were over yesterday meeting with some of
the congressional folks. But the data that we relied on for the
rule is what data that we provided yesterday. There is a
request for data that has, as I understand, been made by the
mining industry for information that was developed by NIOSH
with--you know, to do with some of the findings that they have,
which is not data that we have relied on to develop the rule.
Mr. Rokita. Okay.
Mr. Main. That is additional information. And what we have
done is we have actually talked to NIOSH, our staff, when this
was brought to our attention because we want to get the
information out there as well, too, just to clear the air. But
NIOSH is the----
Mr. Rokita. So does that mean you didn't have access to
the--NIOSH's data when you prepared this rule?
Mr. Main. As I understand it, the data that is being
requested is data that was not relied on by our folks when we
developed the rule as a starter. It is data that folks would
like to get that NIOSH used to develop some of their
information.
Mr. Rokita. Okay.
Mr. Main. Okay? And what we are trying to earnestly do is
work with NIOSH and--or work with the folks who have made the
request to get that information released. We have made----
Mr. Rokita. Because you would like to rely on it?
Mr. Main. Pardon?
Mr. Rokita. Because you would like to rely on it?
Mr. Main. No, because there is an interest by the public to
get the information. We want to be helpful to get it out.
Mr. Rokita. Okay.
Mr. Main. Okay.
Mr. Rokita. But would you keep the rule open so that we
could get--until we get that data?
Mr. Main. Well, since it doesn't deal with the underlying
data that was used with the rule, it would not be proper, I
don't think, to do that.
Mr. Rokita. But it would help shape the rule.
Mr. Main. Pardon?
Mr. Rokita. It would help shape the rule and maybe make a
better rule.
Mr. Main. It may give folks some ideas about what they want
to comment on. But this rule has been in the making since 2000.
This is the third rulemaking. And, you know--actually, we have
held seven public hearings, six in the coal fields, to give the
mining community a chance to provide information.
I just put out a notice yesterday capitalizing all the
questions that have been raised to ask the industry again to
provide information. But the subject of what we are talking
about is not data that the standard was directly built from.
Mr. Rokita. Okay.
Mr. Main. But, you know, we are going to be helpful to----
Mr. Rokita. Well, thank you for your help. And I would hope
that you keep the rule open because that might provide us some
data that would help make this a better rule so that we can
stay in the mining business here in America but keep miners
safe. And that should--that is a common interest we all have.
In January, the president issued an executive order that
serves to improve regulation of regulatory review. Since you
took office in late 2009, your agency has propounded no less
than six major rule-making activities for the mining industry.
And we just referenced some of that.
Can you tell the subcommittee what you are doing to take
into account the cumulative costs and burdens that are being--
or would be imposed no stakeholders by these regulations? And
does MSHA conduct an analysis or any safety--on any safety or
health benefits when preparing these regulations?
Mr. Main. Yes, by law, we have to do that analysis. And we
do it as a responsible act of the agency as well. I think if
you look at our regulatory agenda, we have tried to develop a
strategic approach to the regulations.
Black lung--I mean, we have had--anybody that works in the
coal industry or lives in coal mine communities knows somebody
that dies from the disease. Last report of mortality study
published by NIOSH shows that 10,000 miners died from this
disease in the period ending 2004. There is a need to act to
deal with the rule. And we were asking for all comments----
Mr. Rokita. Okay, thank you, sir, very much. And I am not
in the industry, so maybe you can educate me. If MSHA and you
are concerned about the dust that a coal miner is exposed to at
the working face, which would make sense that we all be
concerned about that, would it not make sense to employ
something like air stream helmets rather than worry about the
entire environment? I mean, wouldn't that make more cost-
effective sense?
Mr. Walberg. The gentleman's time is expired. And maybe we
can get that in the second round.
Mr. Rokita. Thank you, sir.
Thank you, Mr. Main.
Mr. Main. Okay. Thank you.
Mr. Walberg. We will move to Mr. Payne, who has joined us.
Thank you.
Mr. Payne. Thank you very much.
I understand mine operators enjoy the time value of money
merely by filing a contest and waiting until their case moves
to the top of the pile several years later. Mr. Main, is the--
is legislation needed to create disincentives for those who use
contests simply to buy time or to game the system to create or
to evade steeper sanctions, in your opinion?
Mr. Main. Yes, I think that we have provided some technical
guidance over the past year about reforms that would help fix
this process through the legislative process. I don't know if
that is what you are referring to or not. But an issue that was
raised by Congresslady Capito over the final order--we have a
rule that was never used. I am talking about the pattern of
violation and talking about the system being gamed and delays
in the--in violations that were cited before they could even be
used.
I think we all have to ask why was this rule never
implemented in 33 years. And what is it going to take to fix
it? We have came up with a solution through a change of
regulation to help get us there. But it does not fix the
problem entirely. And I think you are going to hear a lot of
discussion about this final order issue.
And if you look at the final order application in the
pattern of violation system, does it work better for miners'
protection now under the current regulations, which means you
may have to wait 3 or 4 years to get a--as we just had with the
citations that were finalized recently--before we could take
action? Or should we have the ability to take action on the
front end.
And when we propose a rule, it puts MSHA in the position of
being able to take action on the front end not to have to count
on those final orders. But at the end of the day, there is
still a statutory standard that is going to be applied, which
means that every mine that winds up being on the pattern of
violation, faces an action--this is legislation--faces an
action of a closure order for every ``S & S'' violation that is
found at that mine during the inspection.
Some of those things may be reasons why this law was never
used for 33 years. And it may be a central issue that
discussions about legislation--this may well be a central issue
dealing with the impact of the current rule when it is fully
applied, the final order issues. But, as we see it, it is
better protective of the miners if we do not use final--wait
for final orders before we make a decision about taking any
action against a mine that may be considered unsafe enough to
have a pattern.
Mr. Payne. And there is another question that I have. I
really wanted to follow up, too, on the pattern of violations.
However, the question about advanced notice--Monday, the U.S.
attorney filed an indictment against a Massey security official
for making false statements to the FBI and seeking to destroy
documents.
The indictment charges that this official directed his
security guards at the Upper Big Branch mine to provide
advanced notice of MSHA's inspections. The indictment echoes
testimony given by Gary Quarles, a Massey miner and the father
of a miner killed at Upper Big Branch, who said that, ``When
MSHA arrived at the mine, Massey radioed to say there is a man
on the property. This signals to miners and foremen to correct
deficiencies or direct the inspector to--away from the
deficiencies.''
And so, I wonder if--does this ``catch me, if you can''
approach put miners at a greater risk. And when advanced notice
is expressly prohibited in the Mine Safety Act, is Massey a
case of isolated misconduct? Or is this more widespread, in
your opinion?
Mr. Main. This problem is bigger than we would all like. I
should probably start from that statement. The miners' families
who talked about this being a problem during the congressional
hearings, I think, made that point clear that, you know, there
was advanced notification going on. We found this actually
happening when we have been making these impact inspections and
special inspections.
As a matter of fact, we have had to seek injunctive action
against two, and I think, three mines here over the last number
of months where we have found this conduct. If you look at the
mine that we did an afternoon shift inspection of on--in
September, following the Upper Big Branch disaster, the one we
talked about--went in the mine. Ventilation controls not in
place, dust so thick that you can hardly see the continuous
miner.
Had we not went to that mine at the time we did, we can
only imagine what could have happened. But when we got the
mine, we captured the phone. We prevented advanced notice
because we did that because we thought that this was a mine
that may use that tactic and was able to get in and find
conditions as they existed.
So if you look at this advanced notice issue, it is a real
problem. And I think----
Mr. Walberg. I am sorry. The gentleman's time is expired.
We will move on to Dr. Bucshon.
Mr. Bucshon. I would like to thank you again, Mr. Main, for
the time yesterday in my office discussing this issue. And so,
I don't have any questions today, but I would like to yield the
balance of my time to Mr. Rokita from Indiana.
Mr. Rokita. Thank you, Congressman Bucshon.
You know, West Virginia is kind of the face of the American
mining industry. But Indiana is not too far behind, as you
know, Mr. Main. And so, these issues are of paramount
importance and interest to us. Again, I want to thank you for
your time.
Picking up on my question--and, if you remember--again, not
being in the industry, instead of achieving some--or trying to
achieve an unachievable environment, okay, a standard or
environment in the mine, why not use some other technologies
that are available, like helmets, that would reduce the cost of
mining, protect the miner and move down that route? Are you
familiar with what I am talking about, these helmets where the
miner actually breathes air that is filtered in a self-
contained helmet apparatus?
Mr. Main. Some mines actually use those. And the way the
law is constructed--and Congress, I think, wisely put this
together this way back in 1969--was to say to the mine
operators that you have to control the dust in the mine
environment. It is a mandate.
And when we started, we had a lot less controls than what
we had today, and the dust was much higher. And I think the
first standard was about a three milligram standard to give a
phase-in time. That was right after the 1969 Mine Act.
The law explicitly said that the respirators could not be
used to control the dust. It had to be through the methods of
engineering and controlling the dust. And over the years, I
think we have developed much better dust control technology to
implement what the Congress had thought. And I think we have
better ways to manage how we control that dust.
As a matter of fact, you know, when you look at the data,
the--you know, almost all the mines in the country are
maintaining a level that is at or below the standard that
Congress prescribed. So, you know, the fact is that mine
operators must control this dust through the--you know, the
dust that gets in the environment. I think that is a very wise
approach.
As far as additional respiratory protection, operators are
obligated to provide that when they get into these dust
excursions. The air stream helmets is one methodology, as we
call them, that some operators use. But there is nothing to
prevent any operator in the mining industry to take to employ
these at every mine. But they are obligated to provide
respiratory protection if there is hefty dust----
Mr. Bucshon. The law you talked about where they weren't
allowed to use the air stream helmets--do you--that is a
current law?
Mr. Main. The current law requires engineering controls,
yes, as a primary use.
Mr. Bucshon. Yes. And that is a statute and not a
regulation?
Mr. Main. That is a statute.
Mr. Bucshon. Yes, yes. Would you be supportive of changing
that?
Mr. Main. No, I think that you--if you look at how we mine
coal in this country and if you look at how maintenance happens
or doesn't happen in the mines, I think when you let loose of
that control measure, the environmental control, you risk of
really ramping up the dust levels back in the mines that we
have spent decades to get down. And I think we have achieved a
point in time in mining history that we have developed a lot of
advanced dust control technologies to fix the problem. And a
lot of mines operate every day as----
Mr. Bucshon. These are proven technologies--sorry to
interrupt. These are proven technologies, not in the
experimental phase? But these are proven, workable, not cost-
prohibitive technologies you are talking about?
Mr. Main. These are technologies that are used every day in
mines that are able to maintain dust control levels.
Mr. Bucshon. Okay, thank you. I have got one more question.
It is not necessarily specific to the mining industry, but
industries that you regulate. I am hearing that there is
inconsistencies when inspectors come through.
One inspector might come by one month and find--not say
anything about something, and another inspector comes by
another month and finds something, and you are--these guys
are--it seems like they are always chase their tail because the
inspectors--the inspections, I should say, aren't consistent.
Can you respond to that? And what are your controls to make
sure there is consistency across inspections?
Mr. Main. Yes, one of the things I looked at when I first
became assistant secretary was this issue of inconsistency.
And, as I pointed out when I recognized we had about half of
the inspector staff that had about 2 years experience under
their belt because of this shift of populations of the--you
know, the retirements within MSHA as well as the mining
industry, we began to, a, look harder at areas where we were
having inconsistencies and, b, looking at ways to fix that.
One of the things--I am probably the most traveled
assistant secretary that probably ever had this job. My wife
tells me that anyway. But I went out to--but it is for
purposes. I went out to--met with the aggregates industry in
Indiana--in Indiana, Illinois, to South Carolina, North
Carolina, California and met with folks in Oregon. And really,
we sat down with these aggregates associations, the mining
community and sort of talked through a lot of these problems we
were having.
As a result, we have really formed, I think, a really good
alliance with the National Sandstone and Gravel Association and
others as a pipeline to feed those in and give us an
opportunity to clear those up. Some of them are policies, and
some of them are people.
Mr. Walberg. I am sorry. The gentleman's time is ended
again.
Mr. Bucshon. Thank you, Mr. Chairman.
Mr. Walberg. And we will move on to a second round.
And retaining my time, I will move to Ranking Member
Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Secretary, miners are the first line of defense to
alert operators of an unsafe condition. But we heard testimony
that few miners believe that the existing provisions of the
Mine Act adequately protect them from retaliation if they speak
up. At the Beckley hearing, we heard that if a miner objects to
unsafe conditions, this could--and it could slow down coal
production, the miners risk losing their job if they brought it
up.
In fact, one of our witnesses, a mother who lost her son,
told us that he had said to her repeatedly that he thought he
was going to die in that mine because it was so unsafe. And she
kept saying, ``Well, why didn't you say something about it?''
And he said that he would be retaliated against and if not at
that very moment, but somewhere down the line.
So the Robert C. Byrd Mine Safety Act extends the 60-day
statute of limitations to 180 days. It updates the burdens. And
it makes it a felony to knowingly interfere with the livelihood
of miners who report hazards or violations to state or federal
authorities.
Is this important? Do we need other reforms to protect
against retaliation?
Mr. Main. I think we have to look very hard at looking at
ways to give miners a level of comfort that they can speak out
if they are exposed to unsafe or unhealthy conditions and see
that action is taken to protect them. They are fearful of
losing their jobs. I mean, there is just, in my mind, no doubt
about that. You know, some miners have that fear.
And I think we need to be looking at how we increase the
protective measures to allow them to have a greater level of
comfort. And that means in cases, more time, that, in cases,
means more penalties against those who retaliate against
miners.
That means that the miner should not have to worry about am
I going to get paid if I lose my job or reassigned to--cleaning
belts in mines is not always noted to be the most precious job.
But, you know, winding up saying something and winding up
getting a shovel in your hand and have to clean up along the
belt lines, things like that. But, yes, I think those are
things that--that we really need to look at in terms of
improving the protections to miners.
Mr. Walberg. Thank you.
We will move to Dr. Bucshon.
Mr. Bucshon. I toured a coal mine in my district about 4 or
5 months ago, Gibson County Coal, 600 feet down and two miles
to the face. I probably told you that. And when I did that, I
had to be trained on a self-contained rescue--or self-rescuer.
And it was pretty interesting because my staff with me, just
the fact that they had to have a self-rescuer was an issue with
them.
They couldn't imagine why that would be. And, as you know,
my father was a union coal miner for 37 years. So I told them,
don't worry, nobody ever uses these things.
But the actual fact is every once in a while, people do
have to use them. And it has been brought to my attention here
that during some random testing of the self-contained self-
rescuers, there has been a significant amount of, I guess,
malfunction in an undetermined percentage of the units. And
what are we--what is our next generation looking like for those
things? Do we have things in the pipeline? And what is MSHA
doing to try to straighten that out?
Mr. Main. One of the things that I try to do quite often is
sit down with the mining industry and look at where we are at
with our technology and where we need to go. I just had a
meeting with the National Mining--Association about 2 weeks ago
to discuss this very subject to try to get a focus on what our
next generation of SCSRs are. And we had a pretty healthy
discussion about what needs to be on the table.
And I am hopeful that we can organize within the mining
community an effort that gets us, more quicker than later, a
new generation of devices. And I think we all realize that we
have to build a device that allows a miner to actually talk
when a device is on because if you get caught in smoke, a
breath can take your life, and you lose your buddy. We have got
to fix things like that.
Mr. Bucshon. Another thing is the time limitation on those.
I mean, I was--I knew this, but, I mean, you have about an
hour, ballpark. Is there anything that we can do to potentially
extend that viability time if you have to use a self-rescuer?
Mr. Main. There is a lot of things in the discussions that
we are looking at. And one is to put a device on and never have
to take it out of your mouth and have enough air through add-
ons, through dockings to get you out of the mine and looking at
ways to reconfigure, possibly, the way that we use self-
rescuers.
We have a small industry in terms of the marketing of these
kind of devices. We have very few manufacturers that want to
get into the business, which we found out about these
communication devices. And this is an open discussion we are
having with NIOSH and the mining industry looking at other
types of equipment such as, maybe, the military uses where
there is a larger market share, more availability of devices.
But it is something that we are all taking a hard look at to
try to figure out what we can develop.
Mr. Bucshon. Yes. And, as you know, President Obama
recently issued an executive order that--wanting every agency
to really reexamine there regulations to see where they might
be able to be changed, modified, eliminated. How is that going
in MSHA? Have you had a chance yet to look over these things
and make sure that the regulations we have in place are not
outdated and don't need to be updated or eliminated going
forward?
Mr. Main. Yes, we have actually a couple regulations on our
deck that deals with the very topic. One of them is which I
talked about just briefly in my written testimony. That is the
part 100 penalty rules.
And looking at the way that that rule is constructed and
the inefficiencies that exist within the--you know, for mine
operators, for MSHA, for miners, the things that drive
inconsistency with the way that the rules are applied. And that
is something we plan to issue as a proposed rule here very
shortly. That is probably the top one on the list.
Mr. Bucshon. Okay.
Mr. Main. And I think it will be an improvement for a lot
of reasons.
Mr. Bucshon. Yes. Another thing, knowing my dad and his
buddies and stuff is, you know, when you institute these, say,
specialty masks or whatever that might be required in high-dust
areas and--or any type of mask really, compliance is a pretty
big--is a potentially big issue. Is there a way with some of
these things that we can assure compliance, even if you put
regulations in place, that the miners themselves will comply?
Mr. Main. Yes, I grew up in the mining industry. And I
started out 18 years old eating a little bit of rock dust and
coal dust and had a lot of experiences in my life. One of the
approaches that I have taken with what we do at MSHA, rules to
live by as a start, we identified rules that are tied with the
most common fatalities we have in the mining industry. We
identified what they were.
We got all the stakeholders together, the mining industry,
miners. And we developed a training program that we train our
inspectors to that we put it out to the industry. Everybody has
the same training program.
We rolled this out about 3 months in advance before we even
came through with the compliance side. We built a lot of
infrastructure on the front end of this to educate and to get
people comfortable with. We have engaged in a similar activity
in the metal, non-metal industry with sampling.
But the strategy that we have--we want the industry to be
informed. We want to get ahead of the curve and try to get the
information out, why are we doing this, what is the importance
of it and get folks to buy into it and then bring the
enforcement phase on the tail end of that.
Mr. Walberg. I thank the gentleman. The time is expired
again.
And we will move to the gentleman from West Virginia, Mr.
Rahall.
Mr. Rahall. Thank you, Mr. Chairman. I, again, thank you
for your courtesies you have extended me today.
I thank you, Mr. Main and Mr. Stricklin and all of your
staff, for the work that you have done, that you did at UBB
and, most importantly, all the rescuers and emergency personnel
who put their lives on the line going into the mine trying to
save other lives.
I am going to be with the families once again, and they
thank you, Joe, for the way you have updated the families every
couple months on your investigation. I will be with them again
next month. I hope I can tell them that Congress is doing all
that we can to ensure that miners don't have to put their lives
on the line to earn a paycheck.
We have acted quickly in the past. Following the Sago
disaster in 2006, all the stakeholders came together. The
Congress passed the Miner Safety Act. President Bush signed it
into law in 2006. And without a doubt, the Miner Act has been
responsible for making our mines a lot safer today. So Congress
can act quickly.
But we hear a lot today about we have got to wait until
your investigation is complete, all the investigations are
complete, until every nook and cranny is looked into before
Congress can once again move on safety legislation. I don't
necessarily buy that argument, but I understand those who are
promoting that argument. And sometimes I am afraid that it is
being used as an excuse rather than a reason.
I would ask you, Mr. Main--and you have talked about
preliminary results of your investigation, both within the
family meetings and here today in your prepared testimony. And
we all know there are criminal investigations going on at the
same time.
Is the latter holding back the release of some of your work
and your investigative work? Is it because of the criminal
investigation that is going on by the FBI and other legal
entities? I don't want to step in dangerous ground here. But I
think it is worth providing the families that type of answer.
Mr. Main. Yes, the first thing that I will note is that you
are exactly right, that Sago did help--the MINER Act, rather,
of 2006. And being on the ground conducting rescue operations,
I was very thankful about the efforts put in to beef up our
mine rescue teams. They did a superb job at Upper Big Branch.
Our inspectors, the state of West Virginia, the mine rescue
teams--and that helped as a result of the Miner Act. And it was
done fairly efficiently. I think it was about 6 months after
the disaster.
In terms of where we are at with our investigation, what
the expectations are, we don't know when we are going to be
done. And we have made a commitment to a request from the
Department of Justice not to do things that will interfere or
jeopardize their investigation. They have asked us to delay our
public hearing that we plan to hold and delay release of the
transcripts.
And we all know how slow or fast the Justice Department
works from time to time. And, unfortunately, I wish I could
give the families a better answer and everyone a better answer.
We just don't know.
But I think it is going to be months before we are able to
release the information that we have as a result of what is
going on in the investigation. And I will tell you this: The
families deserve to know before and as much as anyone else.
Mr. Rahall. Is it your opinion this is more of a serious--
more serious criminal investigation, the Department of Justice
investigation, than you have seen in any previous disasters?
Mr. Main. In my experience, I have to say that I think the
Department of Justice is very serious about this investigation
and getting to the bottom of things that they believe they need
to get to the bottom of. And I can't speak for them, but I
truly believe this is a very serious investigation.
I think they are approaching it the same way that we are.
For the things that they are tasked with, I think they want to
find out what it is that went wrong that they need to deal
with. And I can assure you on our side, we are going to not
only turn over every rock, but pry it apart to understand what
went wrong.
Mr. Rahall. Thank you.
Thank you, Mr. Chairman.
Mr. Walberg. Thank you, Mr. Rahall.
Holding onto my time, I now turn to Mr. Payne.
Mr. Payne. Thank you very much.
I, too, took the opportunity to visit a mine several months
before the big tragedy, I think it was, last year. And
certainly, to go through the training first in order to go to
the mine, secondly, to really go down and enter the mine and to
be there was quite an experience. I would recommend that to
everyone on the committee as we deal with this because to put
yourself in the shoes of those miners is really quite an
experience.
And I really have a lot of respect for the courage and for
their commitment to their work that they continue to do it. The
thing that was interesting that, having a chance to meet some
of the workers, they tend to have been the children and
grandchildren of former miners. I mean, it is part of the
breed. They know that there is going to be danger, but that is
what they do.
Many of them want their children to go off to college and
not do it, but every kid doesn't go to college. And so, there
will be others to do it. So I really take my hat off to people.
As a matter of fact, the first labor issues I ever heard of was
about the United Mine Union, John L. Lewis.
As a little kid, I recognized he had heavy eyebrows. And I
wonder whether that was what you had to have to be a miner. And
I didn't have heavy eyebrows.
But it has always been an issue. And it has been a very
important part of moving America forward. But I think that in a
lot of instances, we don't do as much as we should for miners.
And I just wonder with the MSHA's--the pattern of violation,
MSHA has proposed reforms to the pattern of violation
regulations. But it is unclear whether MSHA has sufficient
legal authority to make effective reforms to the pattern of
violation process.
Let me give you an example. The DOL inspector general urged
MSHA to look at keeping mines on POV for longer than 90 days to
ensure that improvements are sticking. His review found that
performance improvements at mines which received potential
pattern of violation letters for the 90-day review period--but
compliance fell off after the 90-day review expired. So I
wonder do you need legislation to extend the pattern of
violation process to, say, for a year, for example.
Mr. Main. I think we are squeezing out everything we can in
the current rule as well as in the proposed rule that gets--
that has a standard crafted to meet the current statute. To do
more than that is going to take legislation. And I think that
is just pretty much that simple. And I think there is some
different models that were crafted that moved the pattern of
violations process away from the current structure of the
standard to help fix the kind of problems that you are talking
about.
And if you want to move beyond what we are doing on the
current standards, you are going to have to change the
standard. I know we are talking about coal mines, but this is a
standard that applies to the entire mining industry. And there
is, I think, two of the 14 mines were metal, non-metal mines.
And I just want to sort of bring folks up to speed that may or
may not know the industry that well.
But if you look back at the last 20 years in the mining
industry, we have had more miners die at these non-coal mines,
at metal, non-metal mines, than we have at coal mines. And I
know this is an issue that comes up from time to time about the
work that we do on that side. In applying the pattern and other
enforcement actions, the impact inspections, this is a side of
the industry that holds the most mining deaths as opposed to
coal.
Mr. Payne. The inspector general also recommended that MSHA
use citations rather than final orders to determine whether
there is a pattern of violation at a mine. Your proposed rule
includes this recommendation. However, some industry
participants have argued that this deprives them of due process
because they will have to litigate each citation before having
it count toward history of violation.
Is this rule compromising operator due process rights, in
your opinion?
Mr. Walberg. I am sorry. The gentleman's time has expired.
And we will have to get that answer, maybe, in----
Mr. Payne. Can he say yes or no?
Mr. Walberg. Yes or no?
Mr. Main. I apologize. I was trying to catch the question.
Mr. Payne. Okay. Well, we will give it to you. You can get
it to me in writing.
Mr. Main. Okay. Okay.
Mr. Payne. All right. Thanks.
Mr. Walberg. Mr. Secretary, thank you for your time and
diligence at the table today. Let me just give a couple final
questions here. In your testimony, it highlights changes made
to the pattern of violations criteria in 2010. The POV proposed
rule suggests that mine operators will be judged based on POV
criteria.
However, that criteria is not in the proposal. And so, will
the criteria be in the 2010 revision? If not, what criteria
will be used? And will it be made public for stakeholder input?
Mr. Main. Okay. And I apologize. Was the basis of your
question what criteria we are going to use for 2010 for the
next----
Mr. Walberg. For 2010 the criteria is not in the present
POV proposal. That is indicated as there. Will it be in the
2010 revision? And if not----
Mr. Main. Yes, I should probably answer the question this
way. If we do another pattern of violation, we will do it under
the current rule. And assuming that the new rule would not be
completed by the timeline, which is by the end of this year, we
would be using the current regulation to apply the next pattern
of violation. And the criteria is published for that. Okay?
In terms of the proposed rule, we anticipate we are going
to get comments and responses back from the industry and
stakeholders about what should be in that criteria. We had made
a commitment to the inspector general as part of a review of
the pattern of violation process to have a discussion with the
stakeholders about the criteria that is used. And we fully
expect to do that. But I think for the short-term, one would
expect the current rule to be used because the new rule as not
conceived would be completed by that time.
Mr. Walberg. Okay. One of the reasons the mine safety and
health review commission is facing a backlog in citations is
due to the elimination of the conference process. Your
testimony before the committee last February suggested this was
one area that MSHA was prepared to reengage in.
Last August, you initiated a pilot program to address the
breakdown in the conference process. Can you tell us how that
pilot project is working? And do you believe there will be a
way to reinstate the conference process in the short-term?
Mr. Main. Yes. When I testified here February of last year,
this is something I talked about, which was revamping the whole
conferencing process. We had it on the track to develop a bit
more quickly. I think when Upper Big Branch--when the disaster
happened at--it slowed that model down a little bit. But
nonetheless, we was able to implement a pilot program.
And we chose three districts of which to conduct the pilot.
And it would be--well, the pilot actually involved creating a
process where mine operators could raise with MSHA at the
district level concerns they had about the citations or orders
issued and have an opportunity to settle those out before they
become an issue of litigation and resolve those.
We have since concluded those pilots. I had a meeting with
the entire--I shouldn't say the entire--the representatives of
the mining industry about 2 weeks ago--the National Mining
Association, the Bituminous Coal Operators Association, Sand
and Gravel Association and others and miners unions--to discuss
what we are doing with the pilot, the information that we
generally found thus far. And we are doing an evaluation with
all the operators that participated.
And those who didn't participate, which was a surprise, we
identified a number of mine operators chose not to use that
pre-contest process. We are in the process of evaluating that.
Mine operators are going to be contacted probably over the next
month to get back information. And we are going to use that to
develop a pre-contest conferencing process.
I will tell you up front, I mean, we are looking at a
resource issue here because we have to take care of the backlog
which exists with an amount of our staff. And we are trying to
figure out how we set this up as a separate pre-contest model.
But that is the status of where it is at. Hopefully, over the
next 2 to 3 months, that we will be able to provide some
guidance about where we are going to go with the program.
Mr. Walberg. We look forward to that information as it
comes. Well, thank you.
I would like to thank, again, Assistant Secretary Main for
taking the time to testify before the subcommittee today.
I appreciate the efforts of the subcommittee and attention
to the detail as well as our two members from West Virginia who
had--who joined us as well today. And so, at this time, I would
recognize the ranking member for any closing remarks.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Main, thank you for being here. Your testimony has
informed us about the many, many efforts that MSHA has underway
to protect miners and the obstacles that you face without
additional legislative authorities.
Mr. Chairman, there are many responsible mine operators.
And we know that. However, it is at the peril of America's
miners and against expert judgment if we ignore Mr. Main's plea
for legislation to help deal with that subject of mine
operators who chronically violate our mine safety standards and
allow them to put miners' safety in the bull's eye.
The 1-year anniversary of the Upper Big Branch explosion is
fast upon us. And it had not gone unnoticed that the Congress
has failed to pass legislation to prevent tragedies like this
from happening again. This is unacceptable.
The least we can do for these families is to work
cooperatively together to fix the deficiencies in mine safety.
At the same time, we can't ignore a major problem inherited by
Mr. Main that requires resources: a growing backlog of mine
safety cases lagging for 2 to 3 years at the mine safety review
commission. Last year, MSHA received supplemental funds to
create backlog centers. The review commission hired six new
judges.
However, the Republicans' continuing resolution eliminated
funding requested by the administration to reduce the backlog
this fiscal year. This is not just a paperwork backlog. The
backlog is undermining MSHA's ability to use its existing tools
to address serial violators who endanger miners.
Mr. Chairman, I remain hopeful that we can address MSHA's
resources needs and will work together to do that. Thank you.
Mr. Walberg. Thank you, Ms. Woolsey. And I certainly make a
commitment that we will attempt to deal with the issues and
concern.
And though we come to a year anniversary soon for the
tragic mine event, I hope there is appreciation for the speed
in which we are moving to address these issues by having
hearings such as the one today, by dealing with a budget crisis
that is in place and searching for the core criteria, core
funding sources and needs that we have, that we can move
forward in an economic climate in this country that benefits
all, including the hard-working miners.
I spent some time as a steelworker in a furnace division
melting steel and in dusty situations, dangerous situations as
well that aren't totally comparable, as I understand, to a
mine. But I also understand that people that work there,
whether it be in a steel mill that I worked in or whether it is
in a mine, want to carry on their jobs for their children, for
their future.
They want to come home at night. They want to work in a
climate that doesn't necessarily put them at risk for future
disease and problem. We all know that as we work together, we
have to make those decisions that result in an economic
situation and a social policy situation that is good for all of
us.
I think in getting to the bottom of issues that we are
addressing today--and, Mr. Secretary, I would thank you again
for being here, but also remind you that we would like to have
that whistleblower data so we can add that to our resources so
we understand the full perspective of what is needed to do in
advancing policy that is good for those who work in our mining
industry and hopefully a mining industry that allows us the
energy future that this country ought to have as well.
Without those mines being open, without those miners
working safely and successfully in the mines, we won't have
that opportunity as well. So we will keep moving on. We hope to
go down into a mine. I certainly want that experience. And I
think there are a number of my committee members that would
appreciate that as well.
We want to understand what the safety protections available
are, where the malfunctions are, what you are actually looking
at in a mine situation. And so, that will definitely be part of
our process.
There being no further business, the committee stands
adjourned.
[An additional submission of Ms. Woolsey follows:]
------
[An additional submission of Mr. Main follows:]
DISPOSITION OF COMPLAINTS FILED UNDER SECTION 105(c) OF THE MINE ACT
----------------------------------------------------------------------------------------------------------------
Section 105(c) Complaints/Investigations FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
----------------------------------------------------------------------------------------------------------------
Complaints Received................................................ 126 154 171 169 48
No Violation Found............................................. 91 119 121 113 14
Complaint Withdrawn/General.................................... 4 4 13 14 4
Complaint Withdrawn/Satisfied.................................. 18 17 25 11 2
Currently Open................................................. 0 0 0 0 28
Violation Found................................................ 13 14 12 28 0
----------------------------------------------------------------------------------------------------------------
DISPOSITION OF FMSHRC DISCRIMINATION LOSES
Favorable Decision/Settlement...................................... 11 11 4 4 0
No violation....................................................... 2 1 0 0 0
Withdrawn (while at FMSHRC)........................................ 0 0 0 0 0
Pending at FMSHRC.................................................. 0 2 8 24 0
----------------------------------------------------------------------------------------------------------------
INDEPENDENTLY APPEALED BY COMPLAINANT
Independent Appeals Filed.......................................... 12 15 15 7 2
Favorable Decision/Settlement...................................... 7 2 1 1 0
Decision/Settlement--No violation.................................. 4 4 1 0 0
Withdrawn (while at FMSHRC)........................................ 0 4 5 5 2
Pending at FMSHRC.................................................. 1 3 7 1 0
----------------------------------------------------------------------------------------------------------------
DISPOSITION OF TEMPORARY REINSTATEMENT (TR) REQUESTS
Complaints that Included TR Requests............................... 32 36 53 66 33
TR Sought.......................................................... 7 4 14 20 8
Granted........................................................ 3 2 8 11 1
Approved Settlement............................................ 4 1 5 3 0
Denied/Dismissed............................................... 0 1 1 1 0
Pending........................................................ 0 0 0 5 7
Withdrawn/General.................................................. 4 0 7 12 3
Withdrawn/Satisfied................................................ 5 5 7 1 2
TR not sought...................................................... 16 27 25 33 14
Investigation ongoing.............................................. 0 0 0 0 6
----------------------------------------------------------------------------------------------------------------
Disposition of Complaints Filed Under Section 105(c) of the Mine Act
section 105(c) complaints
Complaints received--Complaint was received in the field
operations. Alleged types of discrimination for exercising rights
guaranteed by the Mine Act include but are not limited to:
Discharge
Interference (suspension, harassment/intimidation,
reduction in pay, denial of overtime, etc.)
Applicant for employment (alleged blacklisting, denial of
employment)
No Violation Found--MSHA closed the investigation after finding no
violation of Section 105(c), usually for one of the following reasons:
MSHA's investigation of miner's complaint was unable to
establish a prima facie case under the Mine Act
Some adverse action was taken against the miner but there
was no evidence the miner engaged in protected activity
Evidence of protected activity and adverse action found,
but no nexus establishing retaliation (insufficient evidence
establishing a connection between the miner's protected activity and
the adverse action taken)
There appears to be retaliation or discrimination but not under the
Mine Act (complaint covered under another federal or state law (FLSA,
OSHA, NLRA, etc.) In these instances, the case is referred to the
appropriate agency for review and determination.
Complaint withdrawn/General--The complaint was withdrawn by
complainant for general reasons:
Complainant no longer wishes to pursue complaint and signs
a waiver to discontinue. (Usually no explanation is given)
Complaint withdrawn/Satisfied--Complaint was withdrawn by
complainant after complaint has been satisfied
Complainant no longer wishes to pursue complaint because
he or she and company has reached a settlement (making the miner
whole). The merits case is considered resolved and not filed with the
Federal Mine Safety and Health Review Commission (FMSHRC).
Currently Open--The case is still under investigation or review.
Violation Found--The Complaint is found to have merit following an
investigation and action was filed by the Secretary of Labor with the
FMSHRC under Section 105(c)(2)
disposition of federal mine safety and health review commission
(fmshrc) discrimination cases
Favorable Decision/Settlement--Case resulted in a favorable
decision after hearing or favorable settlement approved by an
Administrative Law Judge (ALJ).
No Violation--Case resulted in an unfavorable decision after
hearing.
Withdrawn (while at FMSHRC)--Case withdrawn by complainant or the
Secretary prior to decision. Complaint is not pursued.
Pending at FMSHRC--A hearing or ALJ Decision is pending.
dispositions of independently appealed discrimination complaints filed
by complainant--section 105(c)(3)
These are cases that MSHA does not pursue after investigation and
the Complainant brings his/her own action before the Commission.
Decision/Settlement--Case resulted in favorable decisions after
hearing or a favorable settlement was approved by an Administrative Law
Judge (ALJ).
No Violation--The case resulted in an unfavorable decision after
hearing.
Withdrawn (while at FMSHRC)--Case was withdrawn by complainant or
the Secretary after case is filed with FMSHRC before hearing. Complaint
is not pursued.
Pending at FMSHRC--A hearing or ALJ Decision is pending.
disposition of temporary reinstatement (tr) requests
Complaints that Included TR Requests--Cases where Temporary
Reinstatement was requested.
TR Sought--The Secretary filed an application for TR with FMSHRC
following a preliminary investigation.
Dispositions
Granted--working or economic relief ordered by ALJ
Approved Settlement--merits case resolved during TR
process and approved by ALJ
Dismissed--Unfavorable decision (TR not granted by ALJ)
Pending--Decision is pending
Withdrawn/General--The request for TR was withdrawn by complainant
(no reason given).
Withdrawn/Satisfied--The request for TR was withdrawn by
complainant (reinstated/made whole by company without MSHA
involvement).
TR not Sought--The Secretary did not file an application for a TR
because no prima facie case has been alleged. Examples include:
No protected activity
Individual not a miner, etc.
Investigation Ongoing--Determination to proceed with TR on Miner's
behalf still pending.
______
[Questions submitted for the record and their responses
follow:]
U.S. Congress,
Washington, DC, March 18, 2011.
Hon. Joseph A. Main, Assistant Secretary,
Mine Safety and Health Administration, 1100 Wilson Boulevard,
Arlington, VA 22209-3939.
Dear Assistant Secretary Main: Thank you for testifying before the
Subcommittee on Workforce Protection at a hearing entitled, ``Examining
Recent Regulatory and Enforcement Actions of the Mine Safety and Health
Administration,'' on March 3, 2011. I appreciate your participation.
Enclosed are additional questions submitted by members of the
Subcommittee following the hearing. Please provide written responses no
later than April 1, 2011 for inclusion in the official hearing record.
Responses should be sent to Ryan Kearney of the Committee staff who can
be contacted at (202) 225-4527.
Thank you again for your contribution to the work of the
Subcommittee.
Sincerely,
Tim Walberg, Chairman,
Subcommittee on Workforce Protections.
representative todd rokita (r-in)
1. Mr. Main, you have stated that I am confusing the data that has
been requested by stakeholders in relation to MSHA's development of the
respirable coal dust regulation. You believe that I, other Members of
Congress, and stakeholders are requesting other additional data that
National Institute for Occupational Safety and Health (NIOSH) used to
develop their findings and you say that data is not relevant because
you did not rely on such data when developing the regulation. Two
points I would like you to address:
A. You mention that NIOSH used this data to develop their findings.
NIOSH's findings were in part the basis of the 1995 NIOSH report. By
MSHA's own admission, this report was used as the basis of this rule.
Did MSHA then not have access to this hard data when preparing and
writing the regulation? And if MSHA did have access, will you work with
Congress and my office to have the data released by NIOSH to
stakeholders in a timely manner?
B. You somehow also noted that you did not rely on this data to
develop this rule even though MSHA admits it used the 1995 NIOSH report
for which NIOSH indicated the data was used. However, you did not
answer my question about whether or not you had access to this data
directly. Yes or no, did MSHA have access to this NIOSH data when
developing this rule?
2. The data used for this rule is from 1995. Are we to believe that
this data is relevant in 2011 and should be used as the basis for this
rule? It is my understanding that newer findings and data prepared by
NIOSH exists but has not yet been released. Can MSHA explain why more
recent data would not be used to inform this rule?
3. As part of rulemaking, MSHA prepares economic analyses in order
to comply with congressionally mandated procedures on rulemaking. The
objective of these laws is to eliminate excessive and unjustified
burdens on small businesses, and to ensure that regulations are
designed to control their cumulative effects on small businesses. MSHA
has estimated that the dust rule will cost less than $100 million, yet
statements from experts at the public hearings have placed the burden
of the regulation at well over $1 billion. Can you explain the
discrepancies? Can MSHA provide for the Committee the analyses, how it
was conducted and the assumptions made, along with the backgrounds and
training of the personnel involved?
representative donald payne (d-nj)
1. Some industry participants have argued that using citations
instead of final orders for determining past history of violations for
purposes of Pattern of Violations (POV) deprives them of ``due
process.'' Will this approach compromise operator due process rights?
What are operator due process rights to challenge a notice of POV, if
citations are used instead of violations?
______
------
Prepared Statement of Hon. Nick J. Rahall, II, a Representative in
Congress From the State of West Virginia
Chairman Walberg, Ranking Member Woolsey, I thank you and all the
Members of the Subcommittee for affording me the privilege of sitting
with you today. I join in welcoming Secretary Main.
In just over a month, on April 5th, we will reach the one-year
anniversary of the Upper Big Branch Mine Disaster. For me, that is a
personal and difficult milestone. That mine is in my District--not far
from my home. I spent the days after that tragedy waiting, hour by
hour, with the family members of the 29 victims, hoping for miracle
that never came.
Since that tragic day, Members of this Committee and I have heard
numerous horror stories about the way that mine was managed. Just this
week, the Justice Department handed down its first indictment,
confirming reports of illegal management activities at that mine.
April 5th should be a nagging reminder to all of us of the
obligation we have to ensure that the circumstances that led to that
tragedy are not repeated. The families of the miners at UBB are owed
closure and the comfort of knowing that some good will come of the
tragedy that took their loved ones.
I continue to believe that it is possible to reach consensus on a
bill--a necessary, reasonable bill--that will focus on the worst of the
worst offenders, prevent more tragedies, and save precious lives in our
coalfields. And I believe that there are times that it is best to
effect change through the legislative process--where the people have a
voice--rather than allowing agencies a free-hand to make policy changes
through regulation and guidance that change with the political winds.
I have heard the argument that we must wait until the every nook
and cranny of that disaster is fully, absolutely, and finally
investigated before we pass any new legislation. One year after the UBB
tragedy, that argument sounds more like an excuse than a reason.
I remind my colleagues that the Sago disaster happened in January
2006. President Bush signed the MINER Act in June 2006. And the MSHA
report on the cause of the disaster was issued in May 2007. Without a
doubt, the MINER Act has improved the chances for saving lives
following an accident.
Mr. Chairman, again, I thank the Members of this Subcommittee for
their courtesy. I never want to experience another tragedy like the one
at UBB. I never again want to have to look in the faces of wives,
children, or grandparents whose loved ones have perished in a
preventable mine disaster. When I see the families of the miners who
perished at UBB--and I expect to see them early next month on the
anniversary of that tragedy--I want to be able to tell them this
Congress is doing all that it can to ensure that miners don't have to
put their lives at risk to earn a paycheck.
______
[Whereupon, at 11:47 a.m., the subcommittee was adjourned.]