[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
MODERNIZING MINE SAFETY
=======================================================================
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, MAY 4, 2011
__________
Serial No. 112-19
__________
Printed for the use of the Committee on Education and the Workforce
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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 May 4, 2011...................................... 1
Statement of Members:
Walberg, Hon. Tim, chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Questions submitted for the record....................... 97
Woolsey, Hon. Lynn, ranking minority member, Subcommittee on
Workforce Protections...................................... 3
Prepared statement of.................................... 5
Additional submission: Documents received from Tony
Oppegard, attorney for Charles Scott Howard............ 44
Statement of Witnesses:
Bumbico, Anthony S., vice president of safety, Arch Coal,
Inc., on behalf of the National Mining Association......... 29
Prepared statement of.................................... 31
Response to questions submitted for the record........... 99
Ellis, Mark G., president, Industrial Minerals Association--
North America.............................................. 12
Prepared statement of.................................... 14
Griesemer, Louis, on behalf of the National Stone, Sand &
Gravel Association......................................... 6
Prepared statement of.................................... 8
Roberts, Cecil Edward, Jr., president, United Mine Workers of
America (UMWA)............................................. 19
Prepared statement of.................................... 22
MODERNIZING MINE SAFETY
----------
Wednesday, May 4, 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 10:03 a.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Rokita, Bucshon,
Gowdy, Ross, Kelly, Woolsey, Payne, Kucinich, and Miller.
Staff present: Andrew Banducci, Professional Staff Member;
Katherine Bathgate, Press Assistant; Casey Buboltz, Coalitions
and Member Services Coordinator; Ed Gilroy, Director of
Workforce Policy; Benjamin Hoog, Legislative Assistant; Barrett
Karr, Staff Director; Ryan Kearney, Legislative Assistant;
Brian Newell, Press Secretary; Krisann Pearce, General Counsel;
Molly McLaughlin Salmi, Deputy Director of Workforce Policy;
Ken Serafin, Workforce Policy Counsel; Linda Stevens, Chief
Clerk/Assistant to the General Counsel; Alissa Strawcutter,
Deputy Clerk; Loren Sweatt, Professional Staff Member; Joseph
Wheeler, Professional Staff Member; Aaron Albright, Minority
Communications Director for Labor; 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; 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.
Chairman Walberg. Good morning. A quorum being present, the
subcommittee will come to order. We welcome to the subcommittee
each of you.
This is our second opportunity in the 112th Congress to
examine the safety of America's miners. The loss of life last
month in Idaho--in an Idaho silver mine as well as the mining
tragedy at Upper Big Branch are reminders of the need to remain
vigilant in our efforts to promote mine safety.
Over the last year, the Mine Safety and Health
Administration has proposed a number of changes to mine safety,
enforcement. Changes include reestablishing pre-shift
examinations for safety and health violations and a new
emergency rock dusting standard. The administration has also
proposed significant changes to the regulations that govern
when a mine is deemed to be in a patter of violation.
While it has often failed exercising all the enforcement
tools at its disposal, MSHA is to be commended for taking
action. In fact, just last month, the administration, for the
first time in its 40-year history, placed two mines in pattern
of violations status. Additionally, due to the work of the
committee and dedicated journalists, the public is finally able
to take a look at internal audits that reveal more information
about MSHA's enforcement procedures.
There is still a number of questions surrounding MSHA's
recent proposals. And we hope to get some answers today. Most
importantly, we want to determine whether these changes will
produce the safety results we hope to achieve. That is why the
testimony from today's witnesses is so important.
Our witnesses have more than 100 years of combined mine
safety experience and the professional expertise and personal
knowledge will help inform Congress about the current state of
mine safety enforcement, whether MSHA, in their opinion, is on
the right track and what other tools are needed to safeguard
the health and well-being of miners.
We also plan to review whether there are examples of
federal laws or regulations hindering proactive efforts on the
job site that may lead to better safety conditions. Washington
cannot have all the answers. I can't believe I made that
statement, Mr. Chairman. [Laughter.]
But I truly believe that. And may I reiterate? Washington
cannot have all the answers, and it should not stand in the way
of an employer's effort to go above and beyond the law in
providing a safe work environment. Punishment is important, but
putting punishment before prevention is not in the best
interests of America's workers.
As Mr. Roberts has noted in the past, most of the mining
industry does the right thing. Let us ensure federal policies
hold bad actors accountable and partner with the good actors on
behalf of worker safety.
An example of this kind of collaborative effort is the
successful development and deployment of coal dust
explosibility meters, or CDM. The device developed by the
Federal National Institute for Occupational Safety and Health
takes real-time samples of rock dust to help determine its
combustibility. Previously, MSHA laboratories could take weeks
to examine a rock dust sample. Now miners have a useful tool
on-site that immediately enhances safety.
Advancing strong mine safety protections is a goal that we
all share and one we must all work to achieve. Miners work
under extreme conditions to provide the natural resources our
nation needs. And they deserve our support.
Policy makers, enforcement officials and mine operators
each play an important role in helping to ensure miners go home
to their families at the end of their shift. As I noted at our
last mine safety hearing, workers safety is best advanced when
we work together. And I hope we are capable of doing so.
At this time, I would like to recognize my colleague from
California, Lynn Woolsey, the senior Democratic member of the
subcommittee, for 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. This is our second opportunity in the 112th Congress to
examine the safety of America's miners. The loss of life last month in
an Idaho silver mine, as well as the mining tragedy at Upper Big
Branch, are reminders of the need to remain vigilant in our efforts to
promote mine safety.
Over the last year, the Mine Safety and Health Administration has
proposed a number of changes to mine safety enforcement. Changes
include reestablishing preshift examinations for safety and health
violations and a new emergency rock dusting standard. The
administration has also proposed significant changes to the regulations
that govern when a mine is deemed to be in a ``pattern of violations.''
While it has often failed exercising all the enforcement tools at
its disposal, MSHA is to be commended for taking action. In fact, just
last month the administration--for the first time in its 40 year
history--placed two mines in ``pattern of violations'' status.
Additionally, due to the work of the committee and dedicated
journalists, the public is finally able to take a look at internal
audits that reveal more information about MSHA's enforcement
procedures.
There are still a number of questions surrounding MSHA's recent
proposals, and we hope to get some answers today. Most importantly, we
want to determine whether these changes will produce the safety results
we hope to achieve. That is why the testimony from today's witnesses is
so important. Our witnesses have more than 100 years of combined mine
safety experience, and their professional expertise and personal
knowledge will help inform Congress about the current state of mine
safety enforcement, whether MSHA--in their opinion--is on the right
track, and what other tools are needed to safeguard the health and
well-being of miners.
We also plan to review whether there are examples of federal laws
or regulations hindering proactive efforts on the jobsite that may lead
to better safety conditions. Washington cannot have all the answers and
it should not stand in the way of an employer's effort to go above and
beyond the law in providing a safe work environment. Punishment is
important, but putting punishment before prevention is not in the best
interest of America's workers. As Mr. Roberts has noted in the past,
most of the mining industry does the right thing. Let's ensure federal
policies hold bad actors accountable, and partner with the good actors
on behalf of worker safety.
An example of this kind of collaborative effort is the successful
development and deployment of coal dust explosibility meters, or CDEM.
The device, developed by the federal National Institute for
Occupational Safety and Health, takes real time samples of rock dust to
help determine its combustibility. Previously, MSHA laboratories could
take weeks to examine a rock dust sample. Now miners have a useful tool
on site that has immediately enhanced safety.
Advancing strong mine safety protections is a goal that we all
share and one we must all work to achieve. Miners work under extreme
conditions to provide the natural resources our nation needs, and they
deserve our support. Policy makers, enforcement officials, and mine
operators each play an important role in helping to ensure miners go
home to their families at the end of their shift. As I noted at our
last mine safety hearing, worker safety is best advanced when we work
together, and I know we are capable of doing so.
At this time, I would like to recognize my colleague from
California, Mrs. Woolsey, the senior Democrat member of the
Subcommittee, for her opening remarks.
______
Ms. Woolsey. Thank you, Mr. Chairman. And thank you for
convening this very important hearing.
It has been 13 months since the Upper Big Branch disaster,
yet Congress has failed to act on repeated requests from the
Mine Safety and Health Administration, from MSHA. Miners and
their families have asked also. And they want us to modernize
the Mine Safety Act.
MSHA has repeatedly asked our assistance because they need
better tools to protect all miners. They need changes to a
dysfunctional pattern of violations provision, stronger
sanctions to penalize mine operators, operators who provide
advanced notice of inspection, and basics like subpoena
authority.
Following MSHA's March 3rd testimony, which outlined the
need and justification for legislation to modernize the Mine
Act, Mr. Miller, Mr. Rahall and I reintroduced comprehensive
mine safety legislation on April the 15th. It largely mirrors
the Robert C. Byrd Mine Safety Protection Act that was brought
to the floor last year. And it contains the reforms that MSHA
has requested.
One year ago on May 24th in Beckley, West Virginia, this
committee heard from the governor of West Virginia and the
families of miners who were killed at Massey's Upper Big Branch
mine. Gary Quarles, a miner who lost his son, testified that it
was common for Massey Energy to provide advanced notice of the
inspections to miners underground. Under the current Mine Act,
that is classified as criminal misdemeanor. Misdemeanors tend
to receive scant attention from prosecutors. In fact, not one
advanced notice violation has been criminally prosecuted since
1977, even though MSHA inspectors have had to seize phones at
mines to prevent tip-offs.
MSHA has secured injunctions, but the obstruction of
justice continues because there is so little consequence to
flaunting the law. We look forward to hearing from our
witnesses on whether they support strengthening this provision.
We would also like to hear whether our witnesses think
miners who raise concerns about safety are adequately protected
against retaliation under existing law. In Beckley, we learned
that miners were fearful of making safety complaints because it
was made very clear to them that their jobs would be on the
line if they did.
Alice Peters, whose son-in-law, Edward Dean Jones, was
killed in that explosion, testified that he complained at least
seven times about ventilation problems. But his supervisors
told him that he would lose his job if he caused the mine to
stop production.
He was trapped. His son had cystic fibrosis, and he needed
the job for health insurance.
Of course, retaliation is not confined to West Virginia. In
2007, a miner in Kentucky showed video of leaking underground
seals to MSHA. It took 3 years of litigation, hundreds of
thousands of dollars in attorney fees just to get the operator
to pull the disciplinary letter from the employee's file.
We will be asking our witnesses whether MSHA should reform
the badly broken pattern of violations process to provide for
timely sanctions when any mine operator, whether it is coal,
metal or stone, chronically violates mine safety standards. Or
should miners continue to be endangered while serial
recidivists appeal citations for years on end before MSHA can
act?
Finally, Mr. Chairman, we would like to learn if the coal
industry is adopting modern technologies such as coal dust
explosivity meters to help prevent disasters, and whether
Congress needs to take action, as we did in the MINER Act, to
speed the modernization of mine safety and bring that Act into
the 21st century.
I look forward to hearing from each of our witnesses. What
a great panel we have. Thank you.
Thank you, Mr. Chairman.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member,
Subcommittee on Workforce Protections
Mr. Chairman, thank you for convening this important hearing. It
has been 13 months since the Upper Big Branch disaster, yet Congress
has failed to act on repeated requests from the Mine Safety and Health
Administration (MSHA), miners and their families to modernize the Mine
Act.
MSHA has repeatedly asked for our assistance to provide them with
better tools to protect all miners. They need reforms to a
dysfunctional Pattern of Violations provision. They need stronger
sanctions to penalize mine operators who provide advance notice. And
they need basics like subpoena authority.
Following MSHA's March 3 testimony which outlined the need and
justification for legislation to modernize the Mine Act, Mr. Miller,
Mr. Rahall and I re-introduced comprehensive mine safety legislation on
April 15. It largely mirrors the Robert C. Byrd Mine Safety Protection
Act that was brought to the floor last year and contains reforms that
MSHA has requested.
One year ago, on May 24 in Beckley, West Virginia, this Committee
heard from the Governor of West Virginia and the families of miners who
were killed at Massey's Upper Big Branch mine. Gary Quarles, a miner
who lost his son, testified that it was common for Massey Energy to
provide advance notice of inspections to miners underground. Under the
current Mine Act this is classified as a criminal misdemeanor. Since
misdemeanors tend to receive scant attention from prosecutors, not one
advanced notice violation has been criminally prosecuted since 1977,
even though MSHA inspectors have had to seize phones at mines to
prevent tip-offs.
MSHA even secured injunctions, but the obstruction of justice
continues because there is so little consequence to flaunting the law.
We look forward to hearing from our witnesses on whether they support
strengthening this provision.
We would also like to hear whether our witnesses think miners who
raise concerns about safety are adequately protected against
retaliation under existing law. In Beckley, we learned that miners were
fearful of making safety complaints because it was made clear that
their jobs were on the line. Alice Peters, whose son-in-law Edward Dean
Jones, was killed in the explosion, testified that he complained at
least seven times about ventilation problems, but his supervisors told
him that he would lose his job, if he caused the mine to stop
production. Dean was trapped: his son had cystic fibrosis and he needed
the job for health insurance.
Of course, retaliation is not confined to West Virginia. In 2007, a
miner in Kentucky showed video of leaking underground seals to MSHA. It
took 3 years of litigation and hundreds of thousands of dollars in
attorney fees just to get the operator to pull the disciplinary letter
from the employee's file.
We will be asking our witnesses whether MSHA should reform the
badly broken Pattern of Violations process to provide for timely
sanctions when any mine operator, whether it is coal, metal, or stone,
chronically violates mine safety standards. Or should miners continue
to be endangered while serial recidivists appeal citations for years on
end before MSHA can act?
Finally, we would like to learn if the coal industry is adopting
modern technology such as coal dust explosivity meters to help prevent
disasters, and whether Congress needs to take action, as we did in the
MINER Act, to speed the modernization of mine safety.
I look forward to hearing from each of our witnesses today. Thank
you.
______
Chairman Walberg. I 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 record.
It is now my pleasure to introduce our distinguished
witness, Louis Griesemer--and I hope I pronounced that right.
Did I? Am I close? Okay, thank you.
Louis Griesemer is president and CEO of Springfield
Underground, Incorporated. Mr. Griesemer has more than 30 years
of experience in aggregate industry. After earning his
engineering degree from Washington University in St. Louis, he
began working full-time for his family's aggregate business as
safety director and mine planner. Mr. Griesemer is a past
chairman of the National Sand, Stone, Gravel Association's
board of directors. Mr. Griesemer is testifying today on behalf
of National Stone, Sand and Gravel Association.
Mark Ellis is president of the Industrial Minerals
Association, North America, which is the principle trade
association representing the industrial minerals industry in
North America. Mr. Ellis has unique experiencing having served
as an attorney with the Federal Mine Safety and Health Review
Commission and as a senior policy adviser to the assistant
secretary of labor at MSHA. Mr. Ellis is a graduate of the
University of Denver College of Law and its College of Business
Administration.
Cecil Roberts, Jr. is president of the United Mine Workers
of America. Mr. Roberts held a variety of jobs within the coal
mines of West Virginia before becoming a full-time union
activist. He was appointed to serve as a member of the West
Virginia University Institute for Labor Studies and Research
Advisory Board in 1996. Mr. Roberts graduated from West
Virginia Technical College and in 1997 received an honorary
doctorate in humanities from West Virginia University of
Technology.
Anthony Bumbico is vice president of safety with Arch Coal,
Incorporated, one of the largest coal producers in the United
States. Mr. Bumbico directs the health and safety functions for
each of Arch's subsidiary companies, which operate in six
states and employs over 4,700 individuals. Mr. Bumbico was an
underground coal miner for 7 years. Mr. Bumbico is testifying
on behalf of the National Mining Association.
And I welcome each of you.
We will start with Mr. Griesemer.
Thank you for being part of our witness panel.
STATEMENT OF LOUIS A. GRIESEMER, PRESIDENT, SPRINGFIELD
UNDERGROUND, INC., TESTIFYING ON BEHALF OF NATIONAL STONE, SAND
& GRAVEL ASSOCIATION
Mr. Griesemer. Thank you, Chairman Walberg, Ranking Member
Woolsey and members of the subcommittee for inviting me to
testify on behalf of the National Stone, Sand and Gravel
Association on worker safety and health. Also, we gratefully
acknowledge this committee's work of last summer and the work
of dedicated staff to focus mine safety reform on areas of
greatest risk.
I am Louis Griesemer, president of Springfield Underground
in Springfield, Missouri. Springfield Underground was
established by my father in 1946. I myself am an MSHA-certified
safety trainer and got my start in the aggregates business in
our safety department. I know our employees personally. They
are committed to their work. And they are committed to safety
on the job.
The National Stone, Sand and Gravel Association represents
the fresh stone, sand and gravel or construction aggregates
industries. Its member companies produce more than 90 percent
of the crushed stone and more than 70 percent of the sand and
gravel consumed annually in the United States. There are 10,000
aggregates operations in the United States. And 70 percent of
the nation's counties are home to an aggregates operation.
The crushed stone, sand and gravel industry has long been
committed to the safest and most helpful possible production of
aggregates. This has resulted in the safest period in our
sector's history. This was the 10th year in a row in which our
sector achieved a lower injury rate than in the prior year. Our
workplace safety enhancements have come from constant efforts
to train and remind employees of dangers they need to avoid.
However, it seems that MSHA is not so focused. We believe
that MSHA should work more with us on programs that help
instill employees' genuine respect for the precautions that
MSHA and the companies require to ensure they return home safe
every night. Our industry CEOs have met several times with
MSHA's leadership in an effort to work collaboratively to
reduce injuries, illnesses and fatalities.
Of increasing frustration to NSSGA members, however, is
what the aggregates industry believes is inconsistent and
unpredictable enforcement. A review of data shows that while
injury rates continue to fall, there has been a substantial
increase in citations labeled significant and substantial. It
is only sensible to ask why is this happening and how can this
be fair. We believe a more enlightened approach would be more
effective in achieving positive results.
The issuance of citations for each apparent discrepancy, no
matter how unlikely it would ever contribute to a hazard,
heightens frustration and inhibits collaboration. After all,
only 3 years ago did the agency for the first time complete 100
percent of the annual two inspections of surface and four
inspection of underground facilities mandated in the act. This
was well after our industry had begun its decade-long string of
yearly reductions in injury rates.
So for some, the two inspections for surface and four for
underground operations may be appropriate. But for others, it
may not be the best use of resources.
This is especially true, we believe, given the severe
budgetary constraints on the Federal Government and the ongoing
economic slow-down. Moreover, if MSHA's resources are limited
or reduced, we contend that a reduction in the number of
inspections is preferable to reductions in compliance
assistance, training and other areas that are helping industry
improve safety. We would be pleased to work with MSHA and
representatives of miners to update approaches to regulation
and enforcement of mine safety.
Furthermore, a specific point, we believe that
modernization would be achieved if MSHA would establish a
pattern of compliance program, which would give some form of
credit to operators for outstanding adherence to MSHA standards
and keeping low injury rates. It is anticipated that this would
help the agency streamline and improve the efficiency of the
inspection process, thus freeing resources to be targeted at
areas of greatest risk.
Ideas for this include providing credit for excellent
compliance so that future citation assessments can see
financial costs mitigated, allowing inspectors to issue a
notice in lieu of citation for diminimus standard and/or
elimination of citation if immediate abatement is accomplished
by the operator and developing guidelines for inspectors
directing that they focus their inspection hours on the most
troubled operations. And if MSHA is interested in safety and
health management systems, as reflected in the impending June
rulemaking proposal on this matter, then perhaps MSHA could at
least provide an incentive to operators, especially small ones,
by granting credits against other enforcement actions such as
reduced civil penalties in the manner described above for
abatement credits. We respectfully urge, in the effort to
modernize mine safety, that more be done in the area of
assisting operators in compliance, allowing optimal resources
to be focused on the areas of greatest risk.
Thank you. That concludes my statement. And I would be
happy to respond to any questions.
[The statement of Mr. Griesemer follows:]
Prepared Statement of Louis Griesemer, on Behalf of the National Stone,
Sand & Gravel Association
Thank you Chairman Walberg, Ranking Member Woolsey and Members of
the Subcommittee for inviting me to testify on behalf of the National
Stone, Sand & Gravel Association (NSSGA) on worker safety and health.
Also, we gratefully acknowledge this committee's work of last summer
and the work of dedicated staff to focus mine safety reform on areas of
greatest risk.
I am Louis Griesemer, president of Springfield Underground in
Springfield, Mo. Springfield Underground was established by my father
in 1946. My whole career has been with Springfield Underground. I,
myself, am an MSHA-certified safety trainer and got my start in the
aggregates business in our safety department. I know our employees
personally. They are committed to their work and they are committed to
safety on the job. We are proud of the accomplishments of our team and
we look forward to improving steadily.
MSHA is integral to our operations. We are continually in the
process of examining and maintaining our operations for compliance.
Training of employees is an essential part of the process. My company
has long been committed to worker safety, health and training. It is
part of our commitment to all who work for us. Today, I am also the
NSSGA co-chair of the MSHA-NSSGA Alliance, which has worked for a
decade to establish useful training and education materials to enhance
safety and health.
Aggregates Industry
The National Stone, Sand & Gravel Association represents the
crushed stone, sand and gravel--or construction aggregates--industries.
Its member companies produce more than 90 percent of the crushed stone
and more than 70 percent of the sand and gravel consumed annually in
the United States. There are more than 10,000 construction aggregate
operations nationwide. Almost every congressional district is home to a
crushed stone, sand or gravel operation. Proximity to market is
critical due to high transportation costs, so 70 percent of our
nation's counties include an aggregates operation. Of particular
relevance to this hearing, 70 percent of NSSGA members are considered
small businesses.
Industry's Demonstrated Commitment to Health and Safety
The crushed stone, sand and gravel industry has long been committed
to the safest and most healthful possible production of aggregates.
We're very pleased that this commitment to safety and health has
resulted in the safest period in our sector's history. In fact, last
year, we finished with an injury incidence rate of just 2.33 injuries
per 200,000 hours worked. This was the 10th year in a row in which our
sector achieved a lower injury rate than in the prior year. Also, this
was the 19th of the last 20 years of consecutive rate reductions.
Addressing the Causes of Accidents, Injuries and Illnesses
Our workplace safety enhancements have come from constant efforts
to train and remind employees of dangers they need to avoid. Just as in
construction and manufacturing industries, primary dangers stem from
the movement of heavy equipment. Employees must be constantly vigilant.
Not only do injury rates continue to decline in our segment of the
industry, fatal accidents also continue to decline. Last year there
were about 30,000 fatalities in automobile accidents on the Nation's
highways. Comparatively, there were 23 fatal accidents at metal
nonmetal mines; there were five fatalities among aggregates operator
employees. While every fatal accident is a tragedy, we believe this
reflects a remarkable level of safety controls at these workplaces.
As to what has been primary to our success, I would say that it has
been a constant industry-wide effort to impress upon employees the
importance of keeping their wits about them in the workplace, and not
taking shortcuts. In spite of such training and reminders, there are
still problems with employee compliance. No less than half of the fatal
accidents last year were a result of employees' disregarding the most
fundamental precautions around heavy equipment.
However, it seems that enforcement by MSHA is focused on everything
but employee personal responsibility and precautions. We wish that MSHA
would work with us more on programs that help instill in employees
genuine respect for the precautions that MSHA and the companies
require.
Year in and year out, MSHA inspections focus on a wide variety of
things, many of which cannot be shown to have a material bearing on
accidents or accident prevention--things such as adequacy of machine
guards in inaccessible areas, fire extinguisher inspections on spare
fire extinguishers, electrical ground testing on office equipment, the
condition of the outer jackets of low voltage electrical cables, and so
on. It is not that such things are unimportant. It is just that the
most prevalent hazards are elsewhere. As long as human nature leads
employees to believe they can take risks without consequences, we will,
unfortunately, continue to experience serious accidents.
In any event, we in the stone, sand and gravel industry are
committed to doing our part in this regard, and we believe that we
continue to make substantial progress because of our efforts. A number
of factors have contributed to this success. The first is leadership.
Since 2002, we have spearheaded an effort to enlist CEOs committed to
safety and health. Our industry-wide Safety Pledge program is the
vehicle for this. I am pleased that more than 70 percent of our
operator facilities, which account for more than 90 percent of industry
employees, are headed by a CEO who has personally signed the Safety
Pledge.
Safety Collaboration with Government
We have a record of collaborating with government agencies, most
notably MSHA, with which NSSGA signed an alliance agreement. This has
given birth to a number of effective compliance assistance programs
such as Safety Alerts derived from MSHA injury data. Furthermore, we
collaborated with MSHA on the development of the ``Safety Pro in a
Box'' program in which we culled excellent training resources from the
Mine Academy and made them available free of charge to aggregates
operators.
Our industry's CEOs have met several times with MSHA's leadership
to offer to work collaboratively to reduce injuries, illnesses and
fatalities. In these meetings, we made a number of recommendations,
including:
Focusing enforcement on areas of highest risk;
Improving communications between operators and inspectors
to improve consistency in enforcement;
Addressing the behavior component on safety and health,
not just conditions;
Ensuring that the metric for assessing MSHA's success is
focused on demonstrable safety accomplishment--rather than continual
escalation of enforcement (which has certainly been the trend), and
Providing aggregates-specific training for inspectors so
that safety challenges from another sector don't inappropriately affect
enforcement in the metal/non-metal sector.
On the second point--concerning improved communications--we
appreciate it when the agency properly and timely informs stakeholders
of intended areas of enforcement concentration and actions advised for
compliance. Two such examples are the Rules to Live By initiative, and
planned enforcement ramp-up of the 56/57.5002 airborne contaminants
standard.
At Assistant Secretary Main's request, we have lent assistance on
key initiatives. We supported the ``Rules to Live By'' fatality-
prevention program. We also answered Mr. Main's call to disseminate
information about stepped-up enforcement of 56/57.5002, the airborne
contaminants standard, and widely circulated our industry's
Occupational Health Program for compliance assistance.
In other instances, agency interaction with industry has been
absent. A variety of enforcement initiatives were begun without notice
and without stakeholder consultation. An example is truck scales. They
are built by the manufacturers with rub rails, not guardrails.
Suddenly, MSHA is enforcing a requirement for guardrails at virtually
every scale in the country elevated more than 16 inches off the ground.
As a result, many operators were caught by surprise and found
themselves being cited for things that MSHA had always deemed compliant
in the past.
Regulatory Burden
Returning to MSHA, we do believe that the agency has become unduly
reliant on trying to add regulations that, in our view, are not likely
to make material contributions to enhancing safety and health, but
rather will increase bureaucracy, administration and paperwork cost for
companies. We cannot regulate our way to zero injuries.
Furthermore, MSHA should not add regulations that only increase
opportunities for duplicate citations with respect to ``paperwork''
compliance obligations that already exist. The agency is preparing to
propose a rule likely to mandate the use of ``Safety and Health
Management Systems'' (SHMS), on top of the standards mandated by the
Mine Act. This one-size-fits-all approach to rulemaking may also
produce a one-size-fits-all rule for the largest to the smallest
operators for managing their operations. Yet, operators need
flexibility to tailor their efforts at hazard and risk reduction and
legal compliance to the specific size and complexity of their
facilities. Unless done properly, this could significantly add
compliance burden with little or no benefit to safety and health.
Companies need to be able to focus on employee safety reminders and
training in the field, not paperwork, and not more citations to be
dealt with to no good safety or health advantage.
Regulation by Policy
Another concern is the issue of fair notice with respect to MSHA
enforcement initiatives. The fact is that many MSHA requirements are
coming at us without the type of rulemaking we think is required. As
indicated above, MSHA has increasingly adopted novel enforcement
policies without giving the industry advance warning or advice. The
operator only learns of the changed interpretation once the operator is
issued a citation by an inspector, often an inspector who found no
fault with the identical condition previously.
Earlier, I mentioned the example of guardrails for truck scales
(which involve no small expense incidentally for questionable safety
advantage, if any). Another notable example has to do with issues of
fall protection and safe access for mobile equipment. Operators
purchase large haul trucks, for example, that are fully fitted out with
ladders and other means of access by the manufacturers. However, MSHA
is now saying that the equipment as manufactured is not safe and must
be retrofitted by the operator.
No other federal law requires such changes to the equipment when it
is used in any other industry as far as we know. In mining, many
operators have found themselves receiving citations from MSHA requiring
them to retrofit their equipment even though they have had no prior
notice, and even though it is perfectly lawful for the equipment
manufacturers to sell the equipment configured just as they manufacture
it without the features demanded by MSHA. Needless to say, not only
have mine operators not had fair notice, they are caught completely in
the middle on these types of issues. Changes in requirements should
come only through notice and comment rulemaking, not unilateral policy
changes or ``guidance'' by MSHA.
Enforcement Issues
Of increasing frustration to NSSGA members is what the aggregates
industry believes is inconsistent and unpredictable enforcement.
Sometimes it appears that we must pay a heavy price for speaking up and
seeking fairness. MSHA is training inspectors and then auditing them in
the field, but the result seems to be heavier, not fairer, enforcement.
The problem is further complicated. With MSHA's problems in cross-
training inspectors in the various sectors of its jurisdiction (pointed
out in dozens of recently issued Accountability Office audit reports
from 2008-10), the agency recently decided to increase reliance on
accountability teams to double-check inspector performance. This, too,
was often followed by harsher enforcement.
It seems clear to us that focus on ``accountability in
enforcement'' has resulted in not more balanced enforcement, but rather
increased numbers and severity of citations written by MSHA for fear
that an inspector might be found to have missed opportunities for
alleging violations (for example, if too few citations had been issued
at the initial inspection). This comes in the form of follow-up
inspections by another group of inspectors, which might include the
original inspector, area supervisor and someone from district office,
or from another district. Again, I must stress that, while all this is
going on, our industry quietly and steadily proceeds on its own to
become safer and safer. A review of data shows that while injury rates
continue to fall, there has been a substantial increase in citations
labeled--Significant & Substantial.' It is only sensible to ask, why is
this happening and how can it be fair?
The agency should improve its means of training inspectors on both
recognition of hazards, and on the burdens imposed by inappropriate
enforcement, including undue escalation in penalty assessments. After
all, every elevated finding in a citation by an inspector converts to
substantial dollar increases when penalties are proposed. For example,
a single change in finding in a single citation could raise a $2,000
penalty for that citation to $10,000.
Penalty assessments for stone, sand and gravel operators are up
more than double the levels from the period before the 2006 Miner Act;
yet, in this time, our injury rates have continued to fall. The rates
are falling because of good safety management, not civil penalties.
This dichotomy--of more citations and more expensive enforcement
despite excellent industry accomplishments--risks undercutting the
cause for safety and health as well as the perception of MSHA as a
respected government entity working for the common good.
Ways in Which MSHA Enforcement Can Get it Wrong
1. MSHA inspectors cite conditions that are not hazardous.
2. MSHA inspectors cite violations, but over-write the gravity,
e.g., an inspector asserting that a ladder in need of minor repair is
``highly likely'' to cause injury versus the more practical:
``unlikely,'' or ``reasonably likely.''
3. MSHA inspectors cite violations, but over-write the negligence,
e.g., a guard fell off a piece of equipment earlier in the day, and it
is said to constitute ``high'' negligence versus ``low.''
4. MSHA inspectors cite violations, but over-write by labeling them
``significant & substantial'' (that is, the violation could reasonably
be expected to cause an injury of a reasonably serious nature). One
such citation was issued for a piece of trash that was blown by the
wind to within 25 feet of an electrical installation.
5. MSHA inspectors demand abatement that is either unnecessary or
inappropriate, which leads to increased costs that are in no way
justified and typically cannot be recouped if the enforcement turns out
to be wrong. For example, at one operator's plant, an inspector
demanded that--due to an alleged fire hazard--expensive changes be made
to a surge tunnel because of an ostensible fear of belt slippage. The
citation was ultimately vacated, but not before the company was forced
to squander $10, 000 in unnecessary abatements.
6. MSHA inspectors issue threats about future enforcement if the
operator does not divulge every single bit of information an inspector
is seeking, including sometimes information from company records that
are not part of MSHA compliance.
7. MSHA is very often unwilling to correct an inappropriate
citation until just before a hearing so that the agency does not incur
a judicial loss concerning a standard deemed important for the agency's
future enforcement.
8. There is often a sense of threat from inspectors when they
refuse discussion.
Ideas for Improving MSHA Regulation of Safety & Health in the Future
We believe that there could be a more enlightened approach to
encouraging and assisting mine operators in their efforts to secure
worker safety other than issuance of citations for each apparent
discrepancy, no matter how unlikely that it would ever contribute to a
hazard. We contend that the agency should be free to focus its
enforcement resources on areas and operations posing the greatest risk.
We believe that consideration should be given to the issue of whether
mandatory minimum inspections twice a year for surface facilities or
four times a year for underground are indispensible.
After all: only three years ago did the agency for the first time
complete 100 percent of the mandated two inspections of surface, and
four inspections of underground facilities mentioned in the Act. This
was well after our industry had begun its decade-long string of annual
reductions in injury rates. So, for some, the two inspections for
surface and four for underground operations may be appropriate, but for
others it may not be the best use of resources.
I think this is especially the case given the severe budgetary
constraints on the Federal government.
Moreover, if MSHA's resources are limited or reduced, we prefer a
reduction in the number of inspections rather than reductions in
compliance assistance, training and other areas that are helping
industry improve safety.
We believe there is often an excessive concentration of enforcement
on the mine operator with no emphasis on contributions to violations
from other parties, including individual employees when they act
contrary to training and instructions, and independent contractors that
are realistically outside the mine operator's control. We believe that
MSHA could take stronger actions to help induce employee and contractor
cooperation with mine operators on achievement of safety and
compliance.
For the future as well as now, we support further investment in
compliance assistance by MSHA. For instance, we support the continued
utilization of the very successful Small Mine Office, as it has been
structured. We also encourage new cooperative initiatives.
Behavior-based safety is a widely accepted concept instructing that
all who are on a worksite hold some degree of responsibility for their
own safety and health and the safety and health of others on the
property. In fact, there is no way our industry would have achieved the
reductions in injuries in the past ten years had it not been for
company-wide programs aimed at safer work. Any expert in workplace
health and safety would support this. And, our laws and enforcement
should recognize this, as well.
NSSGA would be pleased to play a central role in working to achieve
the most enlightened regulations and enforcement possible under our
existing mine safety and health law. There is precedent for this. In
1997, NSSGA member companies joined forces with miners' representatives
and MSHA to develop a key training regulation so that all stone, sand
and gravel workers would obtain critical training. This resulted in
training mandates much more appropriate to the stone, sand and gravel
industry. In the same manner, we would be pleased to work with MSHA and
representatives of miners to update approaches to regulation and
enforcement of mine safety and health generally.
Furthermore, a specific point: we believe that modernization would
be achieved if MSHA would establish a Pattern of Compliance Program,
which would give some form of credit to operators for outstanding
adherence to MSHA standards and keeping low rates of injuries. It is
anticipated that this would help the agency streamline and make more
efficient the inspection process, thus freeing resources to be targeted
at areas of greatest risk. Ideas for this include:
Providing credit for excellent compliance so that future
citation assessments received can see financial costs mitigated (for
example, increase the good-faith credit from 10 percent back up to 30
percent for timely abatement);
Allowing inspectors to issue a notice in lieu of citation
for a de minimis hazard, and/or elimination of citation if immediate
abatement is accomplished by the operator;
Developing guidelines for inspectors directing that they
focus their inspection hours on the most troubled operations (for
example, inspectors could only spend a limited amount of time
inspecting operations with excellent compliance record versus camping
out at a good operation for an unduly long time);
And if MSHA is interested in Safety and Health Management
Systems, as reflected in the impending June rulemaking proposal on this
matter, then perhaps MSHA could at least provide an incentive to
operators, especially small ones, by granting credits against other
enforcement actions, such as reduced civil penalties, in the manner
described above for abatement credits.
Conclusion
NSSGA appreciates this opportunity to present new ideas for
enhancing worker health and safety. We respectfully urge that more be
done in the area of assisting operators in compliance, allowing optimal
resources to be focused on the areas of greatest risk. Thank you.
______
Chairman Walberg. Thank you.
Now, Mr. Ellis?
STATEMENT OF MARK G. ELLIS, PRESIDENT, INDUSTRIAL MINERALS
ASSOCIATION--NORTH AMERICA
Mr. Ellis. Chairman Walberg, Ranking Member Woolsey and
members of the subcommittee----
Chairman Walberg. Turn your mike on, please.
Mr. Ellis. Thank you. Chairman Walberg, Ranking Member
Woolsey, members of the subcommittee, I am Mark Ellis,
president of the Industrial Minerals Association, North
America, also known as IMA-NA. IMA-NA represents companies that
extract and process a vital and beneficial group of raw
materials known as industrial minerals. Industrial minerals are
the fee stocks for many of the products we take for granted
such as glass, ceramics, plastics, paper and building products.
It is the unique chemical and physical properties imparted by
these minerals which make them valuable.
Mr. Chairman, thank you for inviting the industrial
minerals industry to testify today. Our sector often is
forgotten in the attention paid to other more familiar mined
products. In many ways, the low profile of our industry is a
testament to our ability to extract and process minerals using
safe and responsible methods.
My message to you today is three-fold. First, the safety of
America's miners is the paramount responsibility of all who
work in the mining industry. Second, I ask that we all spend
some time today rethinking what initiatives will modernize mine
safety. Finally, please recognize that not all mining is the
same.
The industrial minerals industry is proud of our
contributions to reducing both the number and, more
importantly, the rate of mining-related deaths, injuries and
illnesses. But let us not lose sight of the fact that the
measure of our success is the safety and health of the mining
workforce. There is absolutely nothing more important than
sending miners home safe and healthy at the end of each day.
Mr. Chairman, if I were to ask you what the leading cause
of injury is in the industrial minerals industry, what would
you guess? Explosions, lung disease, falling rocks, or mobile
equipment? In fact, ergonomic or musculoskeletal injuries
represent 87% of the injuries in our industry. I can't say that
the industrial minerals industry has eliminated all non-
ergonomic hazards in the workplace, just as I can't say we have
eliminated all unsafe behaviors. But our injury statistics are
telling us something, and we are responding to that message. We
want to address what is injuring our miners. So what have we
done?
We have partnered with the National Institute for
Occupational Safety and Health, supported its research, and
provided a variety of products to address ergonomic hazards in
the mining industry. Our companies are responding. They are
evaluating their workplaces for ergonomic hazards. They are
training their mine personnel to eliminate unsafe behaviors.
And they are installing controls. And they are preventing
injuries, all without a single legislative or regulatory
action.
Yet another example of proactivity are member companies
that mine and process 99 percent pure crystal and silica have
developed a voluntary occupational health program that goes far
beyond regulatory requirements, represents thousands of hours
of work by dedicated professionals and, no doubt, is the
primary cause for the virtual elimination of silicosis, the
world's oldest occupational disease, from their workplaces.
The companies do this, not because the law requires it, but
because it is the right thing to do. This leads me to my second
point, Mr. Chairman.
It is time to rethink the types of initiatives that will
modernize mine safety. We acknowledge that there have been
recent preventable tragedies in the mining industry that only
stand to highlight the need for continued vigilance. However,
we believe that the mining industry is not in need of
legislative reform and that the Mine Safety and Health
Administration already has the statutory and regulatory
authority it needs to compel compliance with the law by
recalcitrant mine operators.
This has been demonstrated recently by MSHA's utilization
of its injunctive relief authority and its decision to finally
begin placing mines on a pattern of violations status. MSHA
should focus its resources and the power it already possesses
where they are needed most.
IMA-NA urges Congress and the Department of Labor to
leverage the existing safety programs currently being utilized
by the mining industry. We believe that America's miners would
benefit greatly by implementing a program based on public-
private partnerships, for instance, a program similar to OSHA's
Voluntary Protection Program, and that doing so would be a more
efficient use of MSHA's resources.
It is important to note that not all mining is the same.
The nonmetallic minerals sector of the mining industry simply
does not present the same degree of hazard as other sectors. No
fatality is acceptable, but we note that between 2003 and 2009,
our fatality rate averaged nearly 80% less than the sector with
the highest rate. We also should be noted that the nonmetal
sector in the past has achieved the universally pursued goal of
zero fatalities, most recently in 2006.
In conclusion, modernizing mine safety is an ongoing
activity, and the best results are achieved through
collaboration between industry and government. Regulatory
compliance and reasonable enforcement still is necessary.
However, the measure of our success is not the number or the
severity of the enforcement actions taken against mine
operators, but the safety and health of the mining workforce.
We also need to be prepared to recognize and acknowledge
superior mine safety performance as readily as we condemn
unacceptable performance.
Thank you.
[The statement of Mr. Ellis follows:]
Prepared Statement of Mark G. Ellis, President,
Industrial Minerals Association--North America
Chairman Walberg, Ranking Member Woolsey, and Members of the
Subcommittee: I am Mark Ellis, president of the Industrial Minerals
Association--North America, also known as IMA-NA. I also serve as
president of the National Industrial Sand Association (NISA) and
executive director of the International Diatomite Producers Association
(IDPA), two minerals trade associations that also are members of IMA-
NA. I have more than 30 years experience addressing mine safety and
health matters.
IMA-NA represents companies that extract and process a vital and
beneficial group of raw materials known as industrial minerals.
Industrial minerals are the feed stocks for many of the products we
take for granted, such as glass, ceramics, plastics, paper, and
building products. It is the unique chemical and physical properties
imparted by these minerals that make them valuable. Minerals
represented by IMA-NA include ball clay, barite, bentonite, borates,
calcium carbonate, diatomite, feldspar, industrial sand, kaolin,
magnesia, mica, soda ash, talc, wollastonite and a variety of other
minerals. IMA-NA mineral sections typically represent 75-100% of the
North American production of these industrial minerals.
Mr. Chairman, thank you for inviting the industrial minerals
industry to testify today. Our sector often is forgotten in the
attention paid to other, more familiar, mined products. In many ways,
the low-profile of our industry is a testament to our ability to
extract and process minerals using safe and responsible methods.
My message to you today is fourfold. First, the safety of America's
miners is the paramount responsibility of all who work in the mining
industry. Second, I ask that we all spend some time today rethinking
what initiatives will modernize mine safety. Third, embracing
technological innovation will modernize mine safety. Finally, please
recognize that not all mining is the same.
Safety Is The Paramount Responsibility
The industrial minerals industry is proud of our contributions to
reducing both the number and, more importantly, the rate of mining-
related deaths, injuries, and illnesses. But let us not lose sight of
the fact that the measure of our success is the safety and health of
the mining workforce. There is absolutely nothing more important than
sending miners home safe and healthy at the end of each day.
Mining presents risks unique to minerals extraction and processing
that must be recognized and taken seriously, and anyone who does not
affirmatively and proactively minimize these risks has no business
operating mines. But the people you encounter in the mining industry
generally are good, ethical individuals, who are dedicated to the
protection of those who work in our mines and processing facilities. In
fact, we commend all those who seek to drive fatality and injury rates
to zero, including the U.S. Congress, employees at the Mine Safety and
Health Administration (MSHA) and the National Institute for
Occupational Safety and Health (NIOSH), other government officials,
labor unions, mining communities and families, mine management, health
and safety professionals, the media, and last but not least the miners
themselves.
In the 33+ years since passage of the Federal Mine Safety and
Health Act of 1977, the mining industry (and here I am referring
collectively to the mining industry as a whole) has made significant
gains in reducing both the number, and more importantly, the rate of
mining-related deaths, injuries and illnesses. The industrial minerals
industry is proud of our contributions to this effort and the successes
together we have achieved. But let us not lose sight of the fact that
the measure of our success is not the number or severity of the
enforcement actions taken against mine operators, but the safety and
health of the mining workforce.
Mr. Chairman, if I were to ask you what the leading cause of injury
is in the industrial minerals industry, what would be your guess?
Explosions, lung disease, falling rocks, or mobile equipment accidents?
In fact, ergonomic or musculoskeletal injuries from slips, lifting,
repetitive movement and the like represent 87% of the injuries in our
industry.
A basic tenet of the safety profession is to first identify the
hazard. I can't say that the industrial minerals industry has
eliminated all non-ergonomic hazards in the workplace, just as I can't
say we've eliminated all unsafe behaviors, but our injury statistics
are telling us something and we are responding to that message. We want
to address what is injuring our miners. So what have we done?
IMA-NA formed and ergonomics task force in 2005. We partnered with
the National Institute for Occupational Safety and Health (NIOSH),
supported its research, and produced a variety of products to address
ergonomic hazards in the mining industry. Our companies are responding,
they are evaluating their workplaces for ergonomic hazards, they are
training mine personnel to eliminate unsafe behaviors, they are
installing controls, and they are preventing injuries; all without a
single legislative or regulatory action.
Our industry has not been timid in its embrace of public-private
partnerships. We have formed another partnership with NIOSH and MSHA to
address dust control because minimizing the hazards associated with
exposure to respirable dust is a major priority for our companies. This
particular effort will culminate shortly in the publication by NIOSH of
a definitive resource document filled with information to help the
minerals industry to manage dust control intelligently.
And not insignificantly, we also have maintained an Alliance with
MSHA that has been enormously successful in achieving substantive
results ``beyond compliance'' and which has improved the already
outstanding safety programs of our membership. A few examples of the
successes achieved through this alliance merit attention. Each year we
identify and honor best-in-class companies in the industrial minerals
industry for their safety performance. This includes not only companies
with the best overall safety performance, but individual mining
operations that operate without injuries in excess of 200,000
continuous work hours. We also generate and provide an analysis of
safety performance at each company covering each of their individual
operations. The goal here is to ensure that senior company executives
know not only how their company and its constituent units are
performing on the safety front, but how they compare to companies of
similar size. Finally, I'd like to highlight that IMA-NA and MSHA
jointly developed ``A Practical Guide to an Occupational Health Program
for Respirable Crystalline Silica.'' The model program is based largely
on material developed by MSHA and the National Industrial Sand
Association. The NISA voluntary occupational health program goes far
beyond regulatory requirements, represents thousands of hours of work
by dedicated professionals, and no doubt is the primary cause for the
virtual elimination of silicosis (the world's oldest occupational
disease) from their workplaces. The companies did this, not because the
law requires it, but because it is the right thing to do. IMA-NA thanks
Assistant Secretary Main and his dedicated colleagues at MSHA for their
continuing contributions to this Alliance.
Rethinking What Initiatives Will Modernize Mine Safety
This leads me to my second point. Mr. Chairman, it is time to
rethink what types of initiatives will modernize mine safety. We
acknowledge that there have been recent preventable tragedies in the
mining industry that only stand to highlight the need for continued
vigilance. However, the overall safety performance of the mining
industry may be a surprise to some. For instance between 2002 and 2009,
the fatality rate decreased by 49%, and the total injury rate decreased
by 32%. Further, the mining industry compares quite favorably to other
business and industrial sectors. In 2009, the total injury rate was 3.2
for the mining industry as a whole (based on the number of injuries per
200,000 hours worked). This rate is half that of many other business
and industrial sectors. In fact, the mining industry's collective
injury rates are below the 3.9 average for business and industry as a
whole.
We believe that the mining industry is not in need of legislative
reform, and that MSHA already has the statutory and regulatory
authority it needs to compel compliance with the law by recalcitrant
mine operators. This has been demonstrated recently by MSHA's
utilization of its injunctive relief authority and its decision finally
to begin placing mines on a ``pattern of violations'' status.
Today's approach to safety relies on such concepts as ``behavior
based safety.'' Threats and intimidation have been proven to be
ineffective in getting ``buy-in'' on safety. And ``buy-in'' is what is
needed because what really matters is how people act when no one is
watching.
The mining industry has made considerable advancements in the
development of safe processes and controls, and any efforts to improve
mine safety should recognize the level of sophistication in modern mine
safety management.
Mr. Chairman, IMA-NA believes that the best solutions to protect
the lives of miners emerge from joint public-private partnerships as
opposed to over-reliance on ``command-and-control'' regulatory schemes.
It is human nature to take greater ownership in something that you
helped to create, and collaborative programs are destined to ``get-
things-right'' from the outset as everyone has played a role in their
creation.
MSHA should focus its resources and the powers it already possesses
where they are needed most.
As members of this subcommittee likely are aware, MSHA's statutory
mandate covers a mining industry workforce of about 350,000 miners
working at fewer than 15,000 mining operations. By contrast, OSHA's
statutory mandate covers the construction, agriculture and maritime
sectors, and general industry, with in excess of 130 million employees
working at millions of workplaces. And both MSHA and OSHA seek to
fulfill their statutory mandates with roughly the same number of
federal employees. One reason it takes so many MSHA inspectors to
fulfill the agency's statutory mandate is that the Mine Act requires
each underground mine to be inspected in its entirety four times per
year and each surface mine to be inspected in its entirety two times
per year. At some larger mines, that MSHA inspector presence can become
almost a continuing presence. And these periodic inspections are
mandated regardless of whether the mine demonstrates an exemplary
safety performance or an unacceptable one. While these mandatory
federal inspections without doubt have contributed in some measure to
the steady improvement in mine safety performance, strict adherence to
the mandate has prevented MSHA from re-allocating scarce inspector
resources where they are needed most.
IMA-NA urges Congress and the Department of Labor to leverage the
existing safety programs currently being utilized by the mining
industry. We believe that America's miners would benefit greatly by
implementing a program based on public-private partnerships, for
instance a program similar to OSHA's Voluntary Protection Program
(VPP), and that doing so would be a more efficient use of MSHA's
resources. Since OSHA launched the VPP in 1982, more than 2,000
worksites have been approved for VPP status. VPP sites must demonstrate
an effective safety and health program and operations must meet
performance-based criteria for safety and health. Because this program
is intended to promote a cooperative approach to workplace safety, the
support of employees is a prerequisite for acceptance into the program.
Worksites accepted into VPP are exempt from programmed inspections, but
are subject to inspections generated by complaints, accidents, and
other significant events. The program has generated impressive results,
with the average VPP worksite having injury/illness rates that are
approximately 50% lower than industry averages.
Instituting programs such as this will allow MSHA to hold out the
success of VPP participants to the rest of industry as examples of the
benefits that can be derived from successful safety and health
programs. Recognizing resource limitations at MSHA, a VPP-type program
would be a fiscally responsible way to help promote safety and health
success stories, while at the same time improving efficiency by freeing
the agency to focus its scarce inspection resources on those companies
and operations that truly merit attention and need assistance to help
strengthen their programs.
Embracing Technological Innovation Will Modernize Mine Safety
Mr. Chairman, I would be remiss if I did not at least touch on the
subject of technological innovation when discussing modernizing mine
safety. This committee is to be commended for the technology-forcing
provisions included in the MINER Act. While some intractable challenges
do not lend themselves to technical solutions, solutions that work or
offer promise should be embraced.
I have one example that utilizes the controlled use of compressed
air to clean ``take home'' dust from a miner's work clothes. The
technology was developed in collaboration between an IMA-NA member
company, that company's workforce, and NIOSH. In essence, the
technology involves a clothes-cleaning booth that whisks the dust from
the clothing and safely discharges it from the work environment. It has
potential application at both MSHA- and OSHA-regulated work sites, but
both agencies currently have regulations on their books addressing the
use of compressed air that restrict the introduction of this
technology. Both agencies have expressed interest in the technology
informally, with MSHA approving its use in a limited number of
instances under its petition for modification procedures. However, a
rulemaking of general application is the preferred method to make this
innovative technology more readily available, thereby reducing workers'
exposure to potentially harmful respirable dust.
Another example of cutting-edge technology involves the apparatus I
have in front of me on the witness table. The so-called ``Helmet-CAM''
uses a hardhat-mounted video camera to capture a video of tasks
performed by a mobile worker throughout the workday with the worker's
respirable dust exposure also displayed in real time on the video to
better identify areas or tasks of high exposure. Combining these two
different forms of information together allows for the identification
of key processes and/or tasks that significantly impact a worker's
personal dust exposure. Once areas of high respirable dust exposure are
determined, work practices or control technology can be developed to
address the potential overexposure. The work practices or control
technology then can be re-evaluated to determine its effectiveness in
reducing the worker's dust exposure. This technology also is the result
of a collaborative effort between an IMA-NA member company, that
company's workforce, and NIOSH.
Not All Mining Is The Same
It is important to note that not all mining is the same. The
nonmetallic minerals sector of the mining industry simply does not
present the same degree of hazard as other sectors. No fatality is
acceptable, but we note that between 2003 and 2009 our fatality rate
averaged nearly 80% less than the sector with the highest rate. It also
should be noted that the nonmetal sector in the past has achieved the
universally pursued goal of zero fatalities, most recently in 2006. To
maximize advances toward our common objective of safe and healthy
miners, the focus of any reform, legislative or otherwise, must focus
on what is needed most and where the greatest benefit can be realized.
The same easily can be said of enforcement and compliance assistance.
Conclusion
Modernizing mine safety is an ongoing activity and the best results
are achieved through collaboration between industry and government.
Regulatory compliance and reasonable enforcement still are necessary.
However, the measure of our success is not the number or severity of
the enforcement actions taken against mine operators, but the safety
and health of the mining workforce. We also need to be prepared to
recognize and acknowledge superior mine safety performance as readily
as we condemn unacceptable performance.
______
Chairman Walberg. Thank you, Mr. Ellis.
Mr. Roberts, welcome.
STATEMENT OF CECIL EDWARD ROBERTS, JR., PRESIDENT, UNITED MINE
WORKERS OF AMERICA (UMWA)
Mr. Roberts. Well, thank you for having us here today. I
appreciate this opportunity to speak on behalf of the coal
miners that we represent and, quite frankly, many of the coal
miners and other miners across this country we don't represent.
I am also here today not only as the president of United
Mine Workers, but I am also the chairman of the Health and
Safety Committee for the AFL-CIO. And I will be speaking, and
in some of my prepared remarks address nonmetal mining as well
as coal mining.
I think for 100 years, we had no laws in this country, for
a lack of a better way of saying it. It wasn't until 1969 that
Congress acted and passed laws with enforcement actions by the
government. And that was in 1969 after a terrible tragedy up at
the Farmington Number Nine mine in West Virginia. We still go
there every year to honor those who perished, 19 of which are
still entombed in that mine.
The tragedy was of such horrific nature, all of the miners
could not be recovered. The Congress saw fit at that time, and
I think the nation demanded, that Congress act to protect the
coal miners of this nation. And the question would be, well,
does legislation protect coal miners. And I think that is a
resounding yes.
I think the statistics are very clear with respect to that.
If you look at the 40 years prior to the passage of the 1969
Act, 32,000 miners died in this nation's mines, coal miners.
Forty years after the passage of the act, less than 3,200. We
averaged 800 fatalities a year prior to the passage of the 1969
Act. And we have obviously done so much better.
We passed revisions to the 1969 Act in 1977 that brought in
metal and nonmetal for the same kinds of protections that we
afforded coal miners in 1969. And the results were exactly the
same. We had a two-thirds reduction in the number of fatalities
in metal and nonmetal.
So it is almost impossible for anyone to argue that
Congress acting has not helped protect coal miners and all
miners in the United States of America and continues to do so
every single day. We also know that we never recognized black
lung, pneumoconiosis, as an occupational disease that was
compensable in this nation until 1969. And we also know that
70,000 coal miners have perished in the last 40 years from this
terrible disease.
So I think the statistics tell us that good laws passed by
Congress, laws obeyed and laws enforced have saved many, many
coal miners and other miners' lives in this country. You can't
debate that. It is impossible for anyone to argue against that.
That is the truth.
Some will say, ``Well, things are so much better now.''
Laws are not written for the people who work hard and try to do
the right thing.
You are absolutely right, Mr. Chairman. I have said before
the United States Senate as well as the United States House of
Representatives that I believe that somewhere between 90 and 95
percent of the coal industry is trying very hard to do the
right thing. And I would assume that that goes for all of the
mining industry.
But we have to understand there are people out there who
are not doing the right thing. And we cannot ignore that fact.
And just yesterday, after 29 miners died a year ago at
Massey Energy's Upper Big Branch mine--by the way, I lost
friends in that. I lost neighbors in that. I have lost people I
knew all my life, played ball with and/or their kids or their
grandkids. So that hit home personally for some of us at the
United Mine Workers of America.
Just yesterday, at the Randolph mine, just yesterday, Mr.
Chairman--this happened yesterday. MSHA did an impact
inspection at Massey's Randolph mine and issued 20 withdrawal
orders, miners up into the face without controlling the dust,
dust everywhere, two different pieces of equipment operating in
the same location, all of this in complete violation of the
laws that this Congress has written to protect coal miners.
If we do not have strong enforcement of the laws that
Congress writes, Congress should not write laws because they
are useless if they are not protecting the coal miners in this
nation. And I applaud what MSHA has done with the impact
inspections.
The other thing we do--Mr. Chairman and members of the
subcommittee, need to do a couple things. I think Congress
should be given a lot of credit for what they did in 2006. The
one thing that I can report to you today that if the Sago mine
disaster had occurred yesterday, we would have had one fatality
instead of 12 because of the actions that Congress took in
2006.
You took the actions to say that shelters have to be in
mines. At the time the 2006 legislation was being debated, many
in the industry said, well, we can't comply with this. It won't
work. It costs too much money. But I can tell you there is a
shelter in every single coal mine in the United States or its
equivalent.
And one of the things that we did find from the Upper Big
Branch explosion, the shelter that was in place there withstood
the explosion. Water accumulated, and it did not destroy that
shelter. And many of the people in the industry came here and
said, well, you know what is going to happen. If you put these
shelters in the mines, they are going to be destroyed in
explosions. The miners won't have any place to go.
And unfortunately, the Upper Big Branch miners had no place
to go. They were killed almost instantly. And if they had had
the opportunity to live for 15 minutes, they could have saved
their lives by making their way to one of these shelters. So I
applaud the actions of Congress for the actions they have taken
in 1969 and 1977, in 2006. And I look forward to following the
action Congress takes in the future. Thank you.
[The statement of Mr. Roberts follows:]
------
Chairman Walberg. Thank you, Mr. Roberts.
Mr. Bumbico, welcome.
STATEMENT OF ANTHONY S. BUMBICO, VICE PRESIDENT, SAFETY, ARCH
COAL, INC., TESTIFYING ON BEHALF OF THE NATIONAL MINING
ASSOCIATION
Mr. Bumbico. Mr. Chairman, members of the subcommittee,
thank you for the opportunity to testify. I am Tony Bumbico,
vice president of safety for Arch Coal. I am appearing today on
behalf of the National Mining Association and as a
representative of Arch.
Arch is our nation's second largest coal company with
operations in six states. We have 4,700 employees at our
underground and surface mines. In 2010, we mined over 160
million tons of coal while achieving the lowest injury rate
among our nation's diversified coal producers. While we are
proud, we are not satisfied. Injuries still occur at our
operations, and we won't be satisfied until we reach zero
injuries.
I began my career in 1974 as an underground miner. I was a
member of the United Mine Workers of America and later elected
to a position on the union's executive board. For the last 25
years, I have performed various management functions during
which I have always been dedicated to promoting health and
safety.
During my career, the coal industry has made significant
progress. But the industry can and must continue to improve its
safety performance. In the time I have, I want to talk about
the efforts underway at NMA to modernize mine safety and about
the specific efforts underway at Arch.
In 2007, NMA initiated an effort to identify barriers to
safe performance and to disseminate best practice materials.
This effort began with an examination of the industry's safety
performance. NMA has studied companies with exemplary safety
performance and identified certain common elements.
Effective safety processes tend to be performance-based,
integrated into a comprehensive management system. They are
supported by senior management and encourage employee
involvement. In NMA's estimation, these are the elements
necessary to modernize health and safety in the U.S. mining
industry.
Leadership and culture are the characteristics that have
guided Arch's effort to modernize safety. These characteristics
have had a positive impact on safety throughout the mining
industry. At Arch, safety is a core value. Our goal is to reach
the perfect zero.
Historically, Arch's safety performance has been solid. In
2010, for example, our total incident rate, which measures lost
time and medical injuries, improved to 1.1. That represents a
76 percent improvement since 1998. We didn't achieve this level
of performance overnight.
Our safety process, when I arrived at Arch in 2004, began
with the requirement that each operation meet minimum corporate
standards. These standards were set forth as safety principles
incorporated in division safety plans adopted by each
operation.
In 2004, we implemented a continuous safety improvement
process to focus on identifying and closing measurable gaps in
safety performance. That same year, we also started conducting
cross-operational safety audits where we have people from
different operations evaluate the core safety processes at
their sister mines.
In 2006, not satisfied with our pace of improvement, we
adopted behavior-based safety as the vehicle to drive our
safety performance to the next level. Every Arch operation has
implemented a BBS process using steering teams to support their
improvement efforts. The steering teams develop a list of
critical behaviors with the potential to contribute to
injuries. These critical behaviors serve as the basis for a
peer-to-peer safety observation process.
In a nutshell, BBS is a no-name, no-blame process that
moves beyond the use of injury trends to identify safety
performance. BBS is about encouraging employees to avoid
exposing themselves to risk and sharing information about the
exposures they encounter. It teaches miners about the concept
of safety. Understanding the concept of safety improves the
miners' ability to recognizes risks, respond appropriately and
helps to build an effective safety culture.
It has been 5 years since we implemented BBS, and we are
seeing positive trends. Out total incident rate has improved 57
percent. Exposures have been reduced by over 120,000 peer-to-
peer safety observations. And over 3,100 specific barriers to
safe performance have been identified and eliminated.
BBS has helped our employees understand the concept of
safety. But it is not the only tool available to modernize mine
safety. We have come to recognize that modernizing mine safety
requires leadership, culture, training and involvement,
characteristics that don't result from writing more safety
rules or enforcing them more stringently.
Mr. Chairman, in my written testimony I will also discuss
applications of voluntary protection program to modernizing
mine safety. But in the interest of time, I will defer on that
issue.
In closing, I think it is critical that we all recognize
that to improve safety performance, we need to move beyond the
model based strictly on enforcement. Enforcement is necessary,
particularly with bad actors. But to truly modernize mine
safety, we have to develop performance structures that engage
all stakeholders in problem-solving manner.
Thank you for the opportunity to testify. I will be happy
to answer your questions.
[The statement of Mr. Bumbico follows:]
Prepared Statement of Anthony S. Bumbico, Vice President of Safety,
Arch Coal, Inc., on behalf of the National Mining Association
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify. I am Tony Bumbico, Vice President of Safety for
Arch Coal, Inc. (Arch). I am appearing today on behalf of the National
Mining Association (NMA) and as a representative of Arch.
Arch Coal is our nation's second largest coal company with
operations in six (6) states. We have 4700 employees at our underground
and surface coal mines, preparation plants and ancillary facilities in
Colorado, Kentucky, Utah, Virginia, West Virginia, and Wyoming. In 2010
the Arch Coal subsidiaries mined over 160 million tons of coal that was
shipped to domestic power plants in 39 states for electric generation
and to international customers on four continents.
The coal produced by our subsidiaries represents 15% of domestic
production and 7% of the coal used for domestic energy generation. We
are proud of the fact that our operations accomplished this while
achieving the lowest reportable injury rates among our nation's
diversified coal producers. While we're proud of this accomplishment,
we are not satisfied. Injuries still occur at our operations. As a
company we have more to accomplish and will not be satisfied until we
reach our goal of zero injuries.
I began my career in 1974 as an underground coal miner in West
Virginia. I was a member of the United Mine Workers of America, and was
later elected to a position on the International Union's Executive
Board, a position I held for six years. Following my tenure with the
UMWA, I worked the next 25 years in various safety, human resources,
and operations positions in the coal industry. While I've worn many
different hats, I've always dedicated my career to promoting health and
safety. During my career, the coal industry has made significant
progress in this area. I'm a firm believer, however, that the industry
can and must continue to improve its safety performance.
Before talking about Arch's specific efforts to modernize safety,
I'd like to talk more broadly about the efforts to improve safety
performance that are underway at the National Mining Association.
In 2007, NMA initiated an effort to examine the barriers to
improved safety performance and to disseminate best-practice materials
across the industry. This effort began with an examination of the
industry's safety performance. While most people would agree that
notable progress has been made over the last two decades, the industry
has not reached its goal of zero fatalities and injuries. Moreover, it
appears that the reduction in fatalities has reached a plateau.
Improving safety performance at our current pace is not acceptable.
As a result, NMA has initiated an effort that will complement what's
been accomplished and challenge the industry to take a more aggressive
path to modernize and improve safety performance.
NMA has studied, and continues to study, the safety practices of
companies and industries from around the world that have exemplary
safety performance. Successful safety processes all have certain common
elements. They are integrated into an effective management system, are
supported by senior management; involve their employees in the safety
process; are reinforced by the organization's culture, and in return,
support the culture.
These elements are common to successful safety and health processes
across all industries. In NMA's estimation, these are the elements
necessary to modernize health and safety in the U.S. mining industry.
Exemplary safety performers view adherence with regulatory
requirements as the starting point, not as the finish. They recognize
the limitation of enforcement as a means to improve performance. While
compliance with the law is necessary and important, there are more
effective ways to improve safety performance.
To be effective, a safety system should be specifically designed to
meet the unique needs of an organization. The design must consider the
organization's culture, and its workforce. When designing a
performance-based safety system it's important to remember that ``one
size does not fit all.''
In many respects overly proscriptive regulatory requirements can
inhibit the ability of companies to respond proactively to health and
safety issues. Often, the time spent dealing with bureaucratic
requirements steals precious time that could be spent eliminating a
barrier to safe performance. Enforcement is an important safety tool,
but its ability to improve performance is limited. Quite simply, there
are more effective ways to improve safety performance.
One key thing we've come to realize is that risk-based safety and
health management systems that involve employees are more likely to
move safety performance to the next level. Experience shows that ``safe
behavior'' doesn't occur in a vacuum, it's shaped by leadership and
culture. These are characteristics that are taught and nurtured, not
legislated.
Arch Coal's Safety Process
Leadership and culture are the characteristics that have guided
Arch's efforts to modernize safety. We've had some success developing a
strong safety culture by applying the concepts of leadership, employee
involvement, and problem-solving to health and safety issues.
At Arch, safety is a core value. It's integral to who we are. Our
goal is to reach the Perfect Zero and we think this goal is achievable.
Historically, Arch's safety performance has been solid. In 2010, our
Total Incident Rate, which measures Lost Time and Medical Injuries
improved to 1.10. That represents a 76% improvement since 1998. Over
time, the Arch mines have performed well below the industry average. In
fact, our five-year average is 72% better than the coal industry
average. (Safety performance charts are attached.)
(Note: An incident rate is a means of normalizing injury rates so
that different size organizations can be compared. It is calculated by
multiplying the number of incidents times 200,000 hours and dividing
that number by the hours worked by employees at that site. The 200,000
hours in the calculation represents the number of hours 100 people
normally work in the course of a year).
We didn't achieve this level of performance overnight. Our safety
process was constructed in layers. The building blocks were put in
place over time. I'll take a few minutes to discuss each of these
components. They include:
Division Safety Plans
Cross Operational Audits
Safety Improvement Process
Behavioral Based Safety Process
Division Safety Plans
When I arrived at Arch seven years ago, they had a solid safety
foundation in place. The center piece of their process was a
requirement that each operation meet minimum corporate safety
standards. These standards were set forth as safety principles. These
principles were incorporated in Division Safety Plans adopted by each
operation. Over time, our operations have built on that foundation.
For example, each Arch operation must actively demonstrate a strong
visible management commitment to safety; a working safety policy with a
goal of Zero Injuries; and integrate their safety process into their
organization. They must also establish line organization responsibility
for safety; establish challenging safety goals and objectives; and
require high standards of safety performance.
Each Arch operation must also employ supportive safety
professionals; conduct comprehensive injury/incident investigations;
and provide employees ongoing safety training. Other examples of our
core principles include progressive motivation; effective two-way
communication; and comprehensive safety audits.
Safety Improvement Plans (SIP)
In 2004, Arch implemented a continuous safety improvement process.
This is a systems-based, goal-oriented process that follows an annual
cycle. It focuses our operations on identifying and closing measurable
gaps in safety performance. The SIP process focuses on measurable
results.
Every year, each Arch operation develops a Safety Improvement Plan
(SIP). Our operations analyze key safety performance metrics and
establish between three and five improvement targets. Each SIP
identifies what types of improvement interventions they plan to
implement to achieve their targets. Our corporate safety professionals
visit with them at the beginning and mid-way through each year to
discuss their strategies and progress. At the end of the year, we
evaluate what they've accomplished and start the process all over
again.
Cross Operational Safety Audits
We also started conducting cross operational safety audits in 2004.
Our cross operational audits supplement the safety audit process
already in place at each operation. The concept is really quite simple.
We take people from Mines A, B, & C and go to Mine D to evaluate its
safety process. We use the audit to evaluate the health of a mine's
Division Safety Plan; Safety Improvement Plan; and Behavior-Based
Safety Process. We also use the audit to review their core safety
processes.
Our Cross Operational Audits are not intended to be ``wall-to-
wall'' inspections. They are designed to obtain a ``snapshot'' of how
the mine solves health and safety problems, and to evaluate what their
employees know about health, safety, and injury prevention.
Arch conducts four to five cross-operational safety audits per
year. We attempt to emphasize constructive feedback. One of our primary
objectives is to identify and share best practices. In addition, our
Cross Operational Audit Process helps us to maintain our health and
safety standards. It also serves as an employee development vehicle;
and encourages employee involvement. Most importantly, it helps Arch
visibly demonstrate its commitment to safety.
Other Key Safety Processes
I won't go into as much detail, but I'll mention a few other
processes we've implemented to maintain our focus on continually
improving safety performance, to address specific risks, and to build
our safety culture.
Arch holds an annual safety summit for key managers, safety
professionals and hourly employees active in our safety process. This
event has grown to include nearly 100 internal safety leaders. This is
our annual opportunity to recognize safety accomplishments and
establish new performance objectives.
We also sponsor annual safety workshops to provide developmental
opportunities for our safety professionals. In addition, we have
designed and implemented specific health and safety processes to
address performance issues related to contractor safety; emergency
preparedness; crisis communications; and explosives safety.
Behavior-Based Safety (BBS)
The processes I've mentioned were all in place by 2006. They'd
helped us improve, but we weren't satisfied. We felt we were having too
many injuries and that our safety performance had reached a plateau. In
fact our Total Incident Rate increased from 1.80 in 2005 to 2.57 in
2006.
As a company, we believed that one injury was one too many and we
were confident we could improve. That's why we decided to adopt a
Behavior Based Safety (BBS) process. It's the vehicle we chose to drive
our safety performance to the next level.
Since 2006, every Arch operation has implemented a BBS process. BBS
is a safety improvement process that starts with analyzing the ``safe''
and ``at-risk'' behaviors involved in the daily tasks employees
perform. Each Arch site has assigned a Management Sponsor, appointed a
Facilitator, and established a Steering Team to support their BBS
process.
The Steering Team normally consists of hourly employees. It starts
by developing a list of ``critical behaviors'' with the potential to
contribute to safety related incidents. This list of ``critical
behaviors'' serves as the basis for a peer-to-peer safety observation
process.
The Steering Team trains observers on how to use the critical
behavior checklists to identify exposures that may lead to injuries.
The observers provide their peers with feedback on whether behaviors
are ``safe'' or ``at-risk.'' The data gathered during the observation
process is entered into tracking software to help identify ``at-risk''
trends and barriers to safe performance. This trend information is used
to solve safety problems, identify improvement opportunities, and
remove barriers to safe performance.
The BBS process implemented by Arch was designed by Behavioral
Science Technology, Inc. (BST). While there are other BBS processes
available, we chose BST because it was a systems-based improvement
process that focused on the entire organization's leadership and
culture.
Arch initiated the BBS process at our mines by conducting a
comprehensive organizational assessment. The assessment analyzed key
organizational dimensions that predict safety performance. The
leadership team at each of our mines also participated in an evaluation
and coaching process. Training was conducted to teach supervisors how
to support the process, and employees were trained in data collection
and problem-solving techniques.
The Arch operations have effectively implemented BBS. Now our focus
is on sustaining the processes. We're attempting to do this by
integrating BBS into our traditional safety process and our culture.
We're also taking every opportunity to demonstrate visible safety
leadership.
In a nutshell, BBS moves beyond the use of injury trends to measure
safety performance and identify improvement opportunities. Injury
trends are not predictive. They don't necessarily reflect the risks
employees are exposed to because people are often lucky. They take
shortcuts and get away with it. This leads to complacency. Before you
know it they assume they can take the shortcut and not get hurt because
(as the refrain goes) ``we've always done it that way before.''
Instead of relying solely on injury trends as the primary safety
indicator, BBS focuses on identifying and reducing ``at risk
behaviors'' and reinforcing ``safe behaviors.'' The process helps to
identify risk-related exposures and barriers to safe performance that
can potentially cause injury. Basically, employees are encouraged to
not take the chance of exposing themselves to risk, and to share
information about the exposures they encounter.
Is Arch's BBS process working? We think so. It's been five years
since we started this process and we're seeing positive trends in a
number of key areas.
Our Total Incident Rate has improved 57% from 2.57 in 2006
to 1.10 in 2010.
Exposures have been reduced by 119,477 peer-to-peer safety
observations.
Safe behaviors are being reinforced by our 2,714 trained
observers.
Over 3,160 specific barriers to safe performance have been
identified and eliminated.
Our safety culture has been strengthened by making contact
with 151,498 employees during the observation process.
Our BBS Facilitators and Steering Team members have
developed into a new core of safety leaders.
Ultimately BBS has made our safety culture and process stronger. It
has helped by involving more employees in the safety process; improved
communication flow within our organization; and upgrading the problem-
solving skills of our employees. Here's what some of our facilitators
said at a recent meeting about the BBS process:
The process involves the workforce and empowers them to be
self-directed in improving safety.
The process holds employees accountable for their own
safety performance.
BBS empowers people to change in a positive way.
BBS provides a format for structured problem-solving that
can be applied to all areas, not just safety.
The Concept of Safety
Arch's BBS process is working because it teaches miners about the
``concept of safety.'' Most major mine operators know the critical
competencies miners need to reduce the risk of injury or illness.
Miners need training in basic health and safety regulations, the
technical skills they need to do their job, and emergency/escape
preparedness skills. Most major mining companies address these
competencies fairly well.
In my opinion, the biggest challenge we face in the mining industry
is helping miners to understand the ``concept of safety'' and integrate
them into an effective safety culture. Effective safety performance
requires two key things. You have to improve the ability of miners to
recognize and respond appropriately to hazards; and you have to
convince them your company is serious about safety.
Understanding the concept of safety improves a miner's ability to
recognize risks and respond appropriately. This is made more complex
because mines aren't assembly lines. They are dynamic ever-changing
environments with conditions and risks that change rapidly. Miners have
to be able to safely adapt to a changing environment.
What this means is that--unlike a controlled environment--you can't
rely on rote learning techniques or prescriptive safety rules to ensure
safe performance. That's why writing more safety rules and enforcing
them more stringently is not an effective way to improve safety
performance in coal mines.
You have to provide miners with higher level analytical and
problem-solving skills. In terms of hazards, miners need to be capable
of thinking at a conceptual level. They need to have the ability to
recognize new exposures as conditions change. Safe miners are effective
risk identifiers, decision-makers, and problem solvers. Involvement in
BBS has helped our employees improve these skills. By focusing our
employees on critical behaviors, BBS is increasing their understanding
of the ``concept of safety.''
I'd like to turn to baseball to illustrate this point. Ted Williams
was one of the most prolific hitters in baseball. He once said that * *
*
``A hitter just can't go up there and swing. He's got to think.
Listen (he said) when I played I knew the parks, the mounds, the
batter's box, the backgrounds. I studied the pitcher. I knew what was
going on at the plate. It used to kill me to strike out, but when I
struck out I knew what got me and what I was going to do about it.''
Ted Williams was an effective hitter because he understood the
``concept'' of hitting. He understood the mental, as well as the
physical, aspects of his trade. Ted Williams understood the critical
behaviors that contributed to his success on the baseball field. That's
why he was a master of his craft.
BBS is helping our employees ``master'' the concept of safety. A
master is one who has superior skill or knowledge. An individual or
team with the knowledge and skills to solve problems and creatively
eliminate barriers to safe performance. Regulations don't develop
masters. Masters are shaped by leadership, culture, training and
involvement.
Voluntary Protection Program
We have found that performance-oriented, systems-based safety
processes that involve employees help drive safety performance. Along
this same line of thought, we believe safety performance would also be
enhanced if MSHA adopted a program for mine safety modeled on the very
successful Voluntary Protection Program (VPP) administered by the
Occupational Safety and Health Administration (OSHA). The VPP, created
in 1982, allows those employers who meet performance-based health and
safety criteria to be removed from programmed inspection lists. OSHA
will not issue citations for standards violations that are promptly
corrected so long as the worksite continues to exceed the VPP
standards. The VPP promotes a cooperative approach to workplace safety.
Employee support and involvement is a prerequisite for acceptance into
the VPP.
It's important to note that the VPP complements OSHA's enforcement
activity, it does not replace it. MSHA could tailor a program in the
same manner. VPP allows OSHA to focus its inspection resources on
higher-risk worksites and would permit MSHA to do the same. This will
become an increasingly important consideration as OSHA and MSHA alike
are compelled to render resource allocation decisions in a time of
budgetary limitations.
Once a worksite is accepted into the VPP program, it must prepare a
self-evaluation annually to be submitted to OSHA along with injury and
health rates. All compliance standards and worksites remain subject to
OSHA inspections generated by complaints, accidents or other
significant events. Because VPP participants develop and implement
systems to prevent employee injuries and illnesses, the average VPP
worksite has a lost workday incidence rate at least 50 percent below
the average for its industry.
Since its inception, the VPP has steadily expanded the number of
worksites participating in the program. They are located in every state
and cover more than one million employees. In addition, since 1992,
states have started their own VPP programs. Today hundreds of worksites
participate in State VPP programs. In 1997, recognition of the
program's success resulted in it being expanded to allow federal
worksites to participate.
To improve and modernize mine safety, we need to operate more
effectively. To improve safety performance, we need to move beyond a
model based strictly on enforcement. Enforcement is necessary,
particularly with regard to ``bad actors,'' but to truly modernize mine
safety we have to develop performance structures that engage all
stakeholders in a problem-solving manner.
Performance structures based on risk-based approaches that
establish higher standards, engage employees, and encourage cooperation
simply make sense. If MSHA were to adopt a VPP-type process it would
move the industry in that direction.
Closing
Mr. Chairman, thank you for the opportunity to testify. I would be
happy to answer any questions.
______
Chairman Walberg. I thank each of you for your testimony.
And now we will move to questions from the panel here. And I
look forward to beginning.
Mr. Griesemer, in your written testimony you cite examples
of MSHA inspectors lacking consistency in their citation
process. I personally heard many illustrations and examples of
how an inspector will write a violation for something that
another inspector said was acceptable only months prior. I also
hear of inspections that result in high numbers of citations
that go on to be found to have no merit.
You suggest that this problem of inconsistency may stem
from cross-training inspectors in various sectors of
jurisdiction. Do you believe the inconsistencies found in this
citation process result from inspectors inserting a great deal
of subjectivity to the citation process rather than using
objective standards?
Mr. Griesemer. Mr. Chairman, I believe that there is an
effort by MSHA to be consistent. But I believe there is a--let
me give you a couple of examples. I just had a couple citations
a week ago at our Open Pit plant in Joplin, Missouri. And I
think they pretty much illustrate some of the issues that small
operators like myself are dealing with.
And one of these citations is justifiable. One of our
stockpile truck drivers dismounted his machine after setting
the parking brake, left the machine unattended for a couple of
minutes and then came back. Under the rules to live by, we are
now very focused on chocking wheels for heavy equipment like
that. And what he did was not appropriate.
But this is a shifting standard. I think we could say 10
years ago, that that may not have been a citation. But today,
we are focused on power and haulage, which is responsible for,
I think, last year, it was seven deaths and injuries. So we
have to raise the bar.
And I am in agreement with that. The problem is I went out
to that plant in the fall and instructed our miners that this
is an initiative. This is something we have to--we have to
comply with. We supplied the wheel chocks. We supplied the
training. But it is still one of those patterns, those patterns
of behavior that have to be adjusted.
That was a 7-year employee stockpile truck driver doing his
job and making that decision as to whether he was going to be
off that truck long enough to chock the wheels. This resulted
in a citation that is a significant and substantial citation
with possibility of a fatality being highly likely.
An instance of what will be a contested violation is we
were cited on a maintenance truck that was located at the
plant. The backup alarm on it was not--could not be heard above
the surrounding noise levels. This maintenance truck had a
backup alarm, but the inspector decided it couldn't--it wasn't
loud enough.
We took that back to the shop and determined that that
backup alarm was above the 85 decibel levels that would require
hearing protection. I don't know where to go with that kind of
a citation because everybody is correct in that instance. It
couldn't be heard above the ambient noise levels, but then you
are going to require the operators to wear hearing protection.
You are not going to hear the backup alarm.
Chairman Walberg. Cover against it? Yes.
Mr. Griesemer. So these are specific examples. This
happened on April 26th of this year. These are the things that
the small operators are having to deal with and trying to
comply with this type of enforcement, which we feel like is not
necessarily appropriate for our type of operations.
We would need more help. We would suggest that rather than
spending the resources on more inspections and heavy-handed
enforcement, that more assistance be given to small operators
so that we can change the behavior of our employees when there
is this kind of raising of the bar of what is expected as far
as safe behavior.
Chairman Walberg. I appreciate that.
Mr. Ellis, in your written testimony, you discuss use of
technology, I think, that is laying in front of you here. Maybe
you could describe that and describe why that isn't receiving
wide usage.
Mr. Ellis. I would be pleased to, Mr. Chairman.
Chairman Walberg. And you have a short period of time here,
but do the best you can.
Mr. Ellis. Understood. This device was developed in concert
between one of our member companies, their workforce and the
National Institute for Occupational Safety and Health. These
are producers of crystalline silica, which is a potential cause
of silicosis, a deadly or disabling lung disease.
What this device does is it combines two different
technologies and merges them together. There is a video camera
that is mounted to that hard hat. And the wearer of the hard
hat then can show everything he is looking at or working on.
Also involved in here is a sampling device that extracts
respirable dust of a certain size, 10 micrometers or less. And
that is fed into a particle counter, which then measures what
that miner's exposure is.
And so, as this person is wearing this device, eventually
the two technologies are merged that produce a video in real-
time that shows what the miner is doing as well as what his
respirable dust exposure is. And it is particularly well-suited
for people that do a variety of tasks around a mine, like
somebody involved in maintenance where they are checking here
and then they are moving off to another location. We can
identify where high exposures are and then look at trying to
modify either work practices or institute control technologies
to control those exposures.
Chairman Walberg. Okay. Well, I wish I had more time to
question, but I have got to abide by my own rules, at least to
a point here.
So I will turn the questioning over now to the gentlelady
from California, Ranking Member Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman. We can go around
again, you know.
Mr. Roberts laid it out. Safety laws and regulations have
made a difference. And workforces are safer because of OSHA and
MSHA, period.
Mr. Bumbico, you supported it in your testimony. You said
virtually the same thing. And I really respect that.
So the question is how do we look at where we were 40 years
ago, where do we need to be now. And what does modernizing
mean? Because we are not in the 21st century. Ergonomics, who
even knew the word 40 years ago when we started with this whole
thing? So we have a lot of work to do.
And it is very clear that employers--let us assume every
employer here and most employers do the right thing. So the
question is what are we going to do to protect the workers at
the work sites where there are what we call bad actors that
repeat and repeat and continue to do the same things over and
over.
Because you see, when we have voluntary compliance,
voluntary safety, then the companies that play by the rules
voluntarily spend more money to take care of their workers. It
is not a level playing field then for the competition. The guys
who don't do it, everything is cheaper for them. So that is not
right for you, either. So the question is what do we do.
And so, I am going to ask you first, Cecil. What is your
response to the industry arguments that counting citations
instead of final orders unfairly deprives them of due process?
Mr. Roberts. I think that speaks directly to the Pattern of
Violations. If you go back to 1989, the UMWA was concerned
about this. And I think there is testimony on record here that
we suggested that if you only use final orders, which means
that this entire process has taken place on appeals--and we
know there are 19,000 cases backed up as we speak. So let us
think about that for a moment.
And I hate to continue using Upper Big Branch as an
example, but the violations that Upper Big Branch had on
appeal, some of which are setting at the Review Commision now,
and they had not been finally adjudicated and they may not have
been for another year and assume that the mine had not had the
terrible tragedy that it did. But we would still be trying to
adjudicate some of those citations. And the very first thing
that most in the public and most in Congress said immediately
upon the explosion was, why didn't the government close down
this operation.
The way the system is working right now is that, if you
can't get under a Pattern of Violations until the final order
is issued, you would have had a problem in 2008. The final
orders might have been adjudicated in 2010. You may have
corrected the problem by 2010, but people were in jeopardy in
2008. The system simply isn't working.
Ms. Woolsey. They died.
Mr. Roberts. And I think we have to decide do we want to
protect the nation's coal miners, or do we want to have an
opportunity for the appeal process and fairness to the coal
industry itself? I think we have to come down on the side of
protecting the coal miners. I think if we had Upper Big Branch
to do over, everyone around here would agree with that.
Ms. Woolsey. So, Mr. Bumbico----
Mr. Bumbico. Bumbico.
Ms. Woolsey. Bumbico?
Mr. Bumbico. Yes.
Ms. Woolsey. Okay, let us keep going with this. What does
NMA have--what are their thoughts on proposals to enable MSHA
to place bad actors on POVs? Or do they think the status quo
works?
Mr. Bumbico. We agree with the concept of Pattern of
Violation and the need to ferret out operators that aren't
playing by the rules. I think what we disagree is the method
with which MSHA would propose to go about enforcing that.
Ms. Woolsey. So how would you go about it?
Mr. Bumbico. With regard to the final orders, I think I
would call to the subcommittee's attention the fact that 20
percent of the S&S violations that are contested end up getting
modified. And if you look at more elevated orders like 104-Ds,
that over 30 percent get modified. In addition, I think that
what you are seeing within the industry right now is an influx
of a lot of new inspectors. And in a recent survey----
Ms. Woolsey. Well, you have got all that, the training and
all that. We don't fund MSHA, so what are we going to do? I
mean, if I were you, I would be sitting there saying, ``Get us
the best inspectors we can, train them, and make sure they are
out there. And we will support that investment.''
Mr. Bumbico. I think the biggest fault that we had with the
previous way the Pattern of Violation was operated is that the
type of changes that MSHA was requesting weren't the type of
process changes that would lead to long-term safety
improvement.
Ms. Woolsey. Well----
Mr. Bumbico. They were safety awareness programs that might
be a quick fix and lead to a short-term result. But in terms of
long-term, continuous improvement, they weren't insisting on
those type of changes.
Ms. Woolsey. On short-term. But we are talking about the
long-term Patterns of Violations that are going to eventually
end up in a very serious situation like Massey. And that is
what we are going--we are going after the bad actors first.
Chairman Walberg. Thank you. Gentlelady's time is expired.
We will move on to the chairman of the full committee, the
gentleman from Minnesota.
Mr. Kline. Thank you, Mr. Chairman.
Thank you to all the witnesses for your testimony.
Mr. Bumbico, sort of picking up the general theme here, it
seems to me that the industry was pretty supportive of the
Miner Act in 2006. And Mr. Roberts has indicated the union's
support of that legislation.
And yet, I am pretty sure that the industry has not been
that supportive of Best Miner--or the Miner Safety and Health
Act. Can you kind of explain why that is, why support of one
and what is the problem with the others, as we are looking at
what we might do in this committee and the full committee and
Congress in light of the Upper Big Branch tragedy? What are
your concerns? What is the difference?
Mr. Bumbico. I think the difference is that in 2006, there
was a pretty equal playing field and a lot of give and take on
the various stakeholders. And in the most recent attempt to
look at legislation, there were a number of companies that
attempted to enter into discussions, but we weren't able to
satisfy the concerns we had.
And some of the concerns we had were, one, there were a
number of items that were in that bill that, in effect, could
have been done anyway by MSHA. And, in fact, if you look at the
rock dust standard, if you look at the pattern of violation,
there were a number of things there that MSHA has moved forward
on without the need for legislation.
In addition to that, there were some provisions in that
bill, such as the changing definition of S&S citations, that
would have made it extremely difficult for any violation not to
have been an S&S. So those were issues that kind of hung up the
process.
I think, you know, the biggest concern that we have is that
the average front line supervisor right now has over 300 pages
of regulations in the code of regulations that they have to
deal with on a day-to-day basis. I think we would be better
served to try to improve the way that they understand and deal
with what is on the books now than creating additional
legislation.
Mr. Kline. Okay, thank you. I am going to stay with you,
Mr. Bumbico, for another question, kind of shifting and
thinking about how different countries have different
approaches. And Australia, for example, has a very different
approach that I assume that you are familiar with in their risk
management. Can you explain for all of us here the differences
and what you like or don't like about those differences?
Mr. Bumbico. Well, the fundamental difference is the
difference between prescriptive regulations and a requirement
that an operator look at the major risks and hazards that they
have and come up with ways of dealing with them. Under the
Australian model, those mining companies are charged with
evaluating their major risks and coming up with procedures,
processes that they put in place to deal with them without as
much prescriptive regulation on the part of government.
In the U.S., we have very detailed, prescriptive
regulations that they deal with things one, two, three, four
progression. And the problem with that is that when you look at
a coal mine, a coal mine is a very dynamic, changing
environment. And if you focus strictly on prescriptive ways to
deal with safety, you kind of lull people into the suspicion
that if they do a, b and c, that d is automatically going to
result.
I think what we have to get to here in this country is
moving the conceptual skills of people, from the safety
standpoint, to a higher level. We have to help miners become
better problem solvers, risk identifiers so that they can deal
with the changing environment that they deal with in an
underground and a surface coal mine.
Mr. Kline. So in Australia, for example, the mine operator
identifies a risk, assesses a risk and develops a program to
address them. And then who oversees that?
Mr. Bumbico. They have oversight from the government, but
it is more oversight on what they put in place to determine
whether they are--you know, whether they are complying with
that.
Mr. Kline. Okay, thank you.
I was going to go to Mr. Griesemer and talk about agri-
mining and training, but in compliance with the chairman's
rules and my ever-desperate hope that we will all comply by the
lighting system, I will yield back.
Chairman Walberg. Thank you for the continuing mentoring,
Mr. Chairman. I appreciate it.
Now we will go to the----
Mr. Kline. [Off mike.] Mr. Miller----
Chairman Walberg [continuing]. The gentleman from
California, Mr. Miller.
Mr. Miller. Thank you very much, Mr. Chairman. And thank
you for having this hearing.
Mr. Bumbico, in response to Chairman Kline's question, your
difference in last year's legislation and before is that you
say that MSHA has the authority to do this, so you don't--do
you support their effort to go to citations versus final order?
Mr. Bumbico. No, I don't.
Mr. Miller. Do you support their rock dust changes?
Mr. Bumbico. Yes, I believe that there is pretty much a
consensus within the industry that what they have done from a
rock dust standard standpoint is a good thing.
Mr. Miller. What would you do about whistleblowers?
Mr. Bumbico. Whistleblowers, I believe, at this point have
adequate protection under the existing law.
Mr. Miller. What happened to the person that you fired for
showing the video of the leaking water seals?
Mr. Bumbico. I think----
Mr. Miller. Was that retaliation against a whistleblower?
Mr. Bumbico. I think you are mischaracterizing what
occurred there.
Mr. Miller. You characterize it for me.
Mr. Bumbico. Sure. One, I am not going to talk into great
detail because that issue is currently matter of civil
litigation. But I will say this: The individual questioned took
a video camera underground and did a tape of seals that were
leaking. Instead of calling that to the attention of mine
management or instead of calling MSHA and complaining about the
problem, he took the videotape and brought it to a public
hearing to show it. And then after the fact----
Mr. Miller. So he never addressed it prior--he never
addressed this prior with you, the company?
Mr. Bumbico [continuing]. The issue was dealt with. No. The
individual questioned----
Mr. Miller. I don't think that is what the record shows.
Mr. Bumbico [continuing]. In fact, was not fired, as you
characterized it, for the action in question. He was laid off
in a reduction in force pursuant to the----
Mr. Miller. So what is your--what is your position----
Mr. Bumbico [continuing]. Terms of the labor agreement that
he was working under.
Mr. Miller. What is your position on whistleblowers?
Mr. Bumbico. I believe whistleblowers should have a
protective status under the--under the law. And I believe that
they have adequate protection as it is.
Mr. Miller. So you don't have a problem with that in the
legislation?
Mr. Bumbico. I had a problem with the way it was
characterized in the legislation for the supplemental Miner
Act.
Mr. Miller. But you believe, as a matter of law, they
should be protected?
Mr. Bumbico. I do.
Mr. Miller. Okay. You have an internal, what did you call
it, BBC. Is that----
Mr. Bumbico. Behavior-based safety.
Mr. Miller. BBS. And that is an internal corporate policy?
Mr. Bumbico. That is correct.
Mr. Miller. And in your testimony, your measurements of
that for us are that the--what you call the total incident rate
from 1998 to 2010 and the lost time rate has been on the
overall decline, overall, that you had some ups and downs, but
basically on the decline. Is that correct?
Mr. Bumbico. That is correct.
Mr. Miller. So how does that sit with an average of about
1,500 citations a year? Where do these two things--what is one
telling us and the other is telling us?
Mr. Bumbico. I am not sure what you are asking.
Mr. Miller. Well, and you have the safety program that is,
in theory, on the decline, by your measurements. And yet, you
have been cited violations from 2005 to 2010 and running maybe
the same rate this year of about 1,500 citations a year.
Mr. Bumbico. Well, I think as you look at the increased
inspector presence that we have had at our operation since
2006, the number of inspector shifts have gone up about 20
percent at our mines, as they have at most other mines. And to
put that number in context, our violations per inspection day
still only average less than .5, which, by industry standards,
is very strong.
Mr. Miller. But at the end of the year, you end up with
about 1,500----
Mr. Bumbico. I would also mention--I would also mention
the----
Mr. Miller. At the end of the year--let me just finish my
sentence--you end up with about 1,500 violations.
Mr. Bumbico. And over 4,100 inspector shifts.
Mr. Miller. So what are those 1,500 violations telling you
as a company?
Mr. Bumbico. I think you have to look at each----
Mr. Miller. That they are all wrong, or the workers' fault?
What are they telling you?
Mr. Bumbico. Well, in many cases, they are not correlated
with safety issues. And I can give you a couple of examples, if
you would like.
Mr. Miller. Well----
Mr. Bumbico. We had a number of violations that were----
Mr. Miller. In many instances, they are correlated with
safety. They are about ventilation. They are about rock dust.
They are about the conditions in the mine. And we can argue it
either way.
I am just trying to determine when you look at--you have
your indicators and you say this is a safe operation. It ought
to be--essentially, everybody ought to adopt this in the
industry. And yet, you still have--and those are either
because, what, the inspectors aren't skilled enough or it is
the workers' fault? I mean, I am just trying to determine how
we measure the workplace.
Mr. Bumbico. We also look at violations as indicators of
safety performance. But we take it a step further. We look at
whether there was an underlying safety issue related to the
violation.
In one instance, we had a new inspector that came into our
Mount Laurel mine. And he had an issue with the location of an
AMS sensor, atmospheric monitoring system sensor. He had them
move it a couple of feet in by. And this was a system that had
been used by MSHA as a model of how to design the system in the
past. And not only did he issue a violation for that one belt
head, but he also issued it for every belt in the mine.
Mr. Miller. Now, I love the fact--I mean, I appreciate you
love----
Mr. Bumbico. So in many cases----
Mr. Miller [continuing]. The question is----
Mr. Bumbico. The manner in which they are enforcing the
regulation----
Mr. Miller. What does the body of 1,500 citations tell you?
You can pick one out. I will pick one out. Let us just look at
them and ask the question what does that tell you. Is that
consistent with your safety program? Is it inconsistent? Does
that tell you about modifications that have to take place? Or
is it good enough?
Mr. Bumbico. It is an indicator that we need to look to see
if there is an underlying problem. That is how we deal with it.
Mr. Miller. Thank you.
Chairman Walberg. The gentleman's time is expired.
Ms. Woolsey. Mr. Chairman? Mr. Chairman?
Chairman Walberg. Yes?
Ms. Woolsey. I would like to enter into the record, with
unanimous consent, the Charles Scott Howard decision, the
discrimination proceedings regarding the whistleblower issue we
were just talking about. And, quote, in it, ``Besides Howard,
at least one other pre-shift examiner had brought the leaking
seals to the attention of management.''
[The information follows:]
Prepared Statement of Tony Oppegard, Attorney for Charles Scott Howard
Attached are 27 entries from the preshift examination book at the
Band Mill No. 2 mine operated by Cumberland River Coal Company (Eolia,
Letcher County, Kentucky), which are signed by Charles Scott Howard and
which document hazardous conditions that Mr. Howard found at the mine
seals (``leaking water'', ``cracked'', etc.) during his daily preshift
examinations.
These preshift exam reports cover the period of April 19--May 24,
2007. You will note that each exam report completed by Mr. Howard was
countersigned by a mine foreman for CRCC, which indicates that the
foreman had reviewed Mr. Howard's findings.
Mr. Howard testified at his 105(c) safety discrimination trial on
December 17, 2008, that in addition to documenting the unsafe condition
of the mine seals on numerous occasions in the preshift exam book, he
had also informed several CRCC foremen of these unsafe conditions.
Those foremen were John Scarbro, Terry Mullins, Bob Kilbourne, Ronnie
Adams, Steve Sturgill, James Turner and Eddie Niece (Transcript @ 420).
The attached preshift exam reports, as well as the cited testimony
of Mr. Howard--which was not rebutted at trial--clearly contradict the
testimony of Anthony Bumbico of Arch Coal at the May 4, 2011 hearing
``Modernizing Mine Safety'' before the House Subcommittee on Workforce
Protections. At that hearing, Mr. Bumbico falsely testified that Mr.
Howard had shown the video of the leaking seals at the MSHA public
hearing on July 12, 2007, without first informing Cumberland River Coal
Company of the problems with the seals. Of course, that allegation is
utterly untrue.
It should also be noted that John Scarbro, the superintendent of
the Band Mill No. 2 mine, admitted at the 105(c) trial that Mr. Howard
had told him that the mine seals needed to be repaired (Transcript @
51). That occurred months prior to Mr. Howard showing the video at the
MSHA public hearing.
Finally, given Mr. Scarbro's admission that the mine seals were
leaking for a period of 3\1/2\ months before they were fully repaired
at the end of May, 2007 (Transcript @ 54), it is clear that upper level
mine management for CRCC was well aware of the hazardous condition of
the seals for a substantial period of time long before Mr. Howard
showed the video on July 12, 2007. Mr. Bumbico's implication that CRCC
was somehow blindsided by Mr. Howard's presentation at the public
hearing has no basis in reality.
We would appreciate if you would enter this correspondence in the
official hearing record so that Mr. Bumbico's inaccurate testimony does
not go unchallenged. Please also note Mr. Howard's support for the mine
safety bill that you have introduced. The bill's protections accorded
to miners who speak out for safety on the job are vitally needed.
Thank you for your consideration and for your vigorous work on
behalf of miners' safety & health.
______
------
Chairman Walberg. Without objection.
Do we have a copy?
Ms. Woolsey. Yes, there you go.
Chairman Walberg. Okay, thank you.
We will now move to the gentleman from Indiana, Mr. Rokita.
Mr. Rokita. Thank you, Mr. Chairman. I appreciate you
having this hearing and the Committee's continued interest in
this subject matter.
I also want to thank the witnesses.
My first question goes to Mr. Ellis. Regarding modernizing
mine safety, your testimony concluded by stating that, ``The
measure of success is not the number or severity of the
enforcement actions taken against mine operators, but the
safety and health of the mining workforce.'' True?
Mr. Ellis. Correct.
Mr. Rokita. Given your background and experience with MSHA
and the review commission, can you explain how, briefly, how
the inspectors are evaluated, number one? And I would like to
know if there is a quota for violations. I have several
constituents in the district that tell me stories. But you
could probably put some light on it. And then, is it ever
acceptable or even conceivable for an inspector to have no
citations from an inspection?
Mr. Ellis. Let us go last question first.
Mr. Rokita. Yes, it is conceivable that an inspector can go
through an inspection and issue no citations. I mean, as has
been discussed earlier, enforcement sometimes is a reflection
of what the safety performance is at the company. But more than
anything else, it focuses in on unsafe conditions.
And that inspector may find that there are no unsafe
conditions at that mine. And therefore, you would end up with a
clean inspection.
Mr. Rokita. Quick follow up--does that happen in practice?
Mr. Ellis. No, as a matter of fact. It is in most
situations that second set of eyes from MSHA finds something.
And in some cases, they find more than one thing. Could I ask
you to repeat the second part of your question or the first
part?
Mr. Rokita. Sure. How inspectors are genuinely evaluated.
You know, what makes a good inspector at MSHA?
Mr. Ellis. Well, I mean, inspectors ideally have 5 years of
experience in industry before they come into the inspectorate
force. And then they go through training at the Mine Health and
Safety Academy in Beckley, West Virginia for a couple of years.
And then they move out into the field and work out in the
field as inspectors. And, you know, it is a process where they
move around to different operations so they get exposed to
different types of conditions and different types of mines.
Mr. Rokita. In your experience now, do you have any idea
what percentage of MSHA inspectors actually have 5 years of
experience in the industry?
Mr. Ellis. I don't know, but I know that when I was at the
agency--and it is still on the cusp of it--is that MSHA has a
very senior workforce. A lot of the inspectors are of
retirement age and they are retiring. And the agency is
actively trying to recruit to backfill those positions.
And so, there is a culture shift that is going on with
people that have had substantial experience in the industry and
substantial experience as inspectors that are leaving. And we
are having new people come in. And there is a learning curve
there.
Mr. Rokita. Thank you very much.
Let me switch over to Mr. Griesemer for--did I pronounce
that right? I apologize. Thank you--kind of a follow up to that
same line of questioning, quote, unquote--``the second set of
eyes.''
I am getting reports that one inspector will go in to a
place of business and pass over something, just to make the
example simple. Something hangs on the wall or something hangs
on a piece of equipment. And no report that anything was a
problem. A second inspector comes by, weeks or months later,
``Oh, well, that has to be moved. That is not right,'' or
whatever the situation is.
The company then spends a good deal of money making that
correction. Now, for the third inspection, it is the first
inspector coming by again. ``Why did you move that? Put that
back.'' So the non-uniformity in the inspection procedure, in
the policies seems to be an issue.
One area you believe MSHA could improve is its training
inspectors in the specific requirements of your industry. I
think that was your testimony. Can you explain how aggregates
maybe are different from other segments of the industry?
And is this a problem in the inspection process? Do we have
inspectors going to different segments of the industry? And
could that be contributing to what I just explained? And I am
sorry, I have given you little time to respond.
Mr. Griesemer. I would say, yes, it is all of that. I think
the increased frequency of inspections actually contributes to
that somewhat in that we are now seeing 100 percent of our twos
and fours in the aggregates sector.
And in this down economy, I have to say a lot of us small
producers aren't even running 12 months a year. So it is
particularly a burden for an inspector to come back.
Nothing changes in 6 months in our operations compared to,
like, an active--another mine, a larger mine. We may only have
six or seven employees at a surface operation. And the number
of inspections that they come in and they do to rotate
inspectors. So there is this a new set of eyes and ears every
time.
Mr. Rokita. And that is good or bad?
And I yield back.
Chairman Walberg. Thank you.
Mr. Griesemer. We think the resources could be better used
elsewhere.
Mr. Rokita. Thank you.
Chairman Walberg. Turn now to the gentleman from New
Jersey, Mr. Payne.
Mr. Payne. Thank you very much. And I am glad that we are
having this hearing.
As you know, several years ago, I did go down to a mine.
And I really have to commend workers in the mines for the
challenge that they have. And I think they are very honorable
and hard-working people.
It kind of amazes me, though, that I find that sometimes
the mine owners have sort of a kind of a lackadaisical attitude
about the protection of these hard-working Americans who really
put their lives on the line.
I just have a question. And, as a matter of fact, believe
it or not, around the world--and I have traveled to South
Africa where the mine workers really were very active, even in
the anti-Apartheid work, even in Zambia. The miners protested,
where the Chinese are really running the mines and have armed
guards. And they protested. And the mine owners even listened
to them.
And, of course, what we saw in Chile. So it seems I still
get an uncomfortable feeling about the attitude, it seems,
cavalier attitude of mine owners for these people who really
jeopardize their lives so much.
Let me just ask you, Mr. Roberts, about 2 weeks ago, the
Robert C. Byrd Mine Safety Protection Act was refiled. It will
strengthen criminal penalties, improve protection for miners'
rights and modernize use of technology to prevent explosions in
coal mines. How should Congress go about modernizing mine
safety, in your opinion? And does this bill take the proper
approach?
Mr. Roberts. Thank you for the question. And I don't mean
to be critical of anything that has been raised here today. But
when we look at the situation that exists as we gather here
today--and we know that 70,000 coal miners have died from
pneumoconiosis in the last 40 years. And 10,000 of those died
in the last decade.
We know that we have seen an explosion, the worst disaster
that we have seen in 40 years just a year ago when 29 miners
lost their lives. We know in 2006 that we had a terrible
explosion at Sago. A couple weeks later, miners were caught in
a fire and died at Aracoma.
And then we saw nine miners die, six instantly, at Crandall
Canyon, and three trying valiantly to rescue them in 2007. And
whether or not the most important thing that we should be
talking about is did somebody write a citation that was
consistent or inconsistent seems to not be speaking to the fact
that--we know there is a coal mine right now, right now that I
just raised that might explode and would have exploded had MSHA
not been there. That seems to be a much greater problem, from
my perspective, than perhaps someone feeling they got treated
poorly.
And I apologize if that sounds harsh. I don't mean for it
to come across that way. But all you have to do is meet some of
these families and talk to them and some these miners, too.
What is the most important thing we could do? Well, we could
modernize what we are doing, as a government.
Let me give you a perfect example of that. The way we test
the explosibility of coal dust, for example. You may have read
this. MSHA took a sample from the Upper Big Branch mine. And
the way they test those now, they send them to a lab in Mount
Hope, West Virginia.
They took a sample at Upper Big Branch before the
explosion. Ten days after the explosion, sample came back, and
it was way out of line. In fact, it was 80 percent explosible,
I guess is the word, that they used. So that told everyone,
once the sample came back, well, something should be done here.
Quite frankly, those of you that know anything about coal
mining and have been in a coal mine know you can just about
look and see that. If you have got coal dust all over the mine,
that is like gun powder. That is like gun powder. And it is
more explosive than methane. Methane ignites. Methane explodes.
Then it ignites the coal dust.
You cannot have an explosion like you had at Upper Big
Branch without being totally and completely out of compliance.
And all the evidence suggests that. So we have had the samples
come back. So we need to modernize this.
Inspectors need to be armed with the ability to know what
is in the atmosphere immediately and the explosive range of the
coal dust that is there, whether there is enough rock dust on
it. And MSHA has taken actions to try to increase those
standards. But we need to act and act quickly and modernize the
tools that MSHA has to determine these factors and to be able
to deal with those when they find them.
We should be about the business, I think, of making sure
that we are not here next week or next year talking about this
mine exploded in West Virginia or Kentucky and what do we need
to do about it. And let us be honest about it. There has never
been a law passed here, except one time, and that was 1977, and
that was revisions to the 1969 Act.
We would never passed the 1969 Act if we hadn't had those
coal miners die at Farmington. We would have never acted in
2006 if we hadn't had those miners die at Sago and Aracoma and
then Darby. What has prompted every action by this Congress--
not this particular Congress, but Congress itself--has been a
terrible tragedy. And I think we can do better than that.
Chairman Walberg. Thank you, Mr. Roberts.
The time is expired. And I am glad I concurred with you in
some of my opening statements on that. And I think we all
agree. It is how we get to that point is the question.
I turn now to the gentleman from Pennsylvania, Mr. Kelly?
Mr. Kelly. Thank you, Mr. Chairman.
And all the witnesses, we do appreciate you being here.
I come from the private sector. I am an automobile dealer.
And I think we all would agree that our main concern is making
sure that whatever line of work you are in, you are doing, it
is safe. And I think the danger when we have some of these
hearings is that we get a polarization between those that
operate a business versus those that work in these businesses.
And coming from a situation where it is very important for
my workers to be safe because that ensures my ability to stay
in business--and when I look at this, I have been through
several mines myself. And I have friends that have been from
Western Pennsylvania. There is an inherent risk for going
underground and working in these situations. I agree with that.
I don't think there is any question about that.
Then the question becomes then, okay, can you legislate
safety? Can you legislate common sense? Can you legislate
practical purposes that make sense for everybody?
And I think the difficulty that we have, on this side of
it, is how do you come up with a situation--there is a term in
the military. It is called SLOJ, just s, l, o, j. It is a
sudden loss of judgment where people walk into the tail rotor
of a helicopter.
Now, you could come up with the law says, don't walk within
an area where the helicopter is parked. There are certain
things, like chocking the tires on that truck, that are very
important. In my business, you are supposed to wear a hard hat
and safety glasses when they are working on the underside of a
car. Nobody does it. That is the rule, but nobody does it.
And let me ask you. Because I have watched this. And I have
been through OSHA inspections myself. And some of it gets to
the point of it is like a traffic violation. Well, it would be
called a traffic violation, maybe one for speeding, where you
were going 25 in a 15-mile zone or you were going 85 in a 50-
mile zone. There is a big difference.
Tell me about some of the citations, Mr. Griesemer. Because
I have friends who were cited. And my problem with all this is
there is no remedial purpose to this. When they do an
inspection, to sit down where you say, you know, we found some
problems. We think you need to address them. I mean, leaving
the lid off a garbage container, to me, doesn't have the same
consequences as maybe the coal dust would be.
The distance of a fluorescent light from the top of a desk
maybe doesn't have the same consequences of not having a safety
room for people to go to. So if you could just walk us through
what one of the inspections are. And do you even have the
opportunity to fix what they found was wrong? And it is the
inconsistency of the inspections, I think, that makes it very
difficult come up with a policy that makes sense for all of us.
Mr. Griesemer. Thank you, Congressman. I agree exactly with
what you are saying. I have been doing this for over 30 years.
There has been a big change in the way inspections have been
performed in those--in that period of time. We used to have
inspectors come out to the plant and they would actually give
safety talks to our people, which we welcomed.
And there was more compliance assistance in the early years
than there is today. And the emphasis has changed in the last
few years to enforcement. I see it. They write it up. And there
is a penalty assessed.
It is a prescriptive--somebody had mentioned that before--a
prescriptive solution. I think we have to go--we have to engage
everybody. We have got the CEOs, the middle managers engaged.
We also have to engage the workers because we have to have
their hearts and minds about safety as well.
And I think we are not emphasizing enough there because we
are needing--the small operators are going to have to have some
assistance. MSHA is talking about closing the small mines
office. And it is the compliance assistance that is going away.
And it is the enforcement that is being emphasized over and
over again.
I just agree with you. I think it is the wrong way to go.
The instance of my truck driver not chocking the wheels, I
think you could use that as an example of we had provided the
chocks. We had provided the training. The company had done
everything except anticipate and tell him specifically, you get
off that truck for 1 minute, you have to chock the wheels.
We want them to think about that themselves. You have to
have the worker engaged in safety before those things will
happen.
Mr. Kelly. Okay.
Mr. Roberts, do you have an opportunity to sit down, then,
with management and go over common concerns and then come up
with common answers or solutions to it? Because I think,
really, best practices are usually the result of, not only
those that own the mines, but those that work in the mines.
Does that opportunity exist? Because I think that would be
invaluable to everyone.
Mr. Roberts. It certainly does exist, particularly at
unionized operations. There is a process in the contract itself
that is called the labor/management positive change process
where those kinds of issues are dealt with. Unionized mines
have safety committees that work very closely with management.
But the truth is that many of the mines in this country are
non-union, and the workers are unrepresented. And it is
management who dictates or decides what the health and safety
operations will look like and what the policies will be. So,
yes, at unionized mines there is an opportunity for this kind
of dialogue. We do engage in it.
In fact, we not only engage in it at the local level, at
the mine level. We do it at the national level also.
Mr. Kelly. Okay, thanks. Appreciate it.
Mr. Chairman, thank you.
Chairman Walberg. Gentleman's time is expired.
Now we move to the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman. I want to thank you and
Chairman Kline for having this important hearing.
I also want to thank the witnesses for informing those of
us who are not as familiar with these issues and for your
professionalism and civility towards one another as you
testify.
Mr. Chairman, I was particularly interested in the
gentleman from Indiana, Mr. Rokita's, line of questioning. And
I would yield to him such time as I may have.
Mr. Rokita. Thank you. And I thank the gentleman from South
Carolina, a good friend and certainly a gentleman in every
respect.
Continuing on with my questioning of Mr. Ellis, please. In
your capacity as president of the National Industrial Sand
Association, are you following MSHA's regulatory agenda
proposal to further regulate crystalline silica?
Mr. Ellis. Yes.
Mr. Rokita. Okay. Can you explain what companies are
currently doing to prevent exposure to the silica? And do you
believe a further reduction in the permissible exposure limit
can be achieved?
Mr. Ellis. Let me start out by saying crystalline silica is
a technical name given to a substance that we are all familiar
with, quartz or sand. And that is the substance we are talking
about.
But when it is in respirable size, it is potentially
harmful to the human lung. And it causes disease. It causes
silicosis.
And everybody should appreciate that it is a preventable
disease. So it is something that needs to be taken seriously.
We can prevent that disease.
The rulemaking that is being considered right now
conceivably would look at whether we lower the level from what
it currently is to whether or not we need to add additional
provisions to the law to capture overexposures and eliminate
them. So, yes, we are watching that rule very carefully.
Mr. Rokita. Okay, thank you.
And switching over to Mr. Bumbico, I appreciate your
testimony. Using a little bit of my time, is there anything you
want to add to Congressman Miller's line of questioning? Or do
you feel like that was fully answered?
Mr. Bumbico. I think what I would like to add is that it is
very possible, very probable that the indicators we are looking
at as to what is safe and what is not safe are the wrong
indicators. You know, prior to the disasters that occurred in
2006, the industry was very comfortable because the number of
injuries had been trending down, the number of fatalities
trending down. And I think that is what caused those disasters
that proceeded to be such a shock because we were thinking that
progress was being made.
In my estimation, we are looking at the wrong thing.
Looking at injuries, looking at regulatory compliance is
looking backwards. And what we need to be doing is looking
forwards. We need to be teaching people how to identify
exposures, how to identify risks and how to deal with them.
Mr. Rokita. Thank you.
Mr. Miller. Will the gentleman yield?
Mr. Rokita. Yes.
Mr. Miller. Yes, thank you.
On that point, I mean, that is--I was trying to get to this
point, to some extent, maybe not exactly as you said. But I
represent a lot of heavy industry, oil refiners, chemical
industry, steel mills and others. And we have seen in this
committee, and we saw the tragedies of British Petroleum at
Texas City where all this concentration was on trips and falls
as opposed to processes and how you are doing your job and what
is it you should be thinking of when you have this specific job
to do, whether it is shutting down a vessel, reworking a
turnaround.
And I think we are moving in that--in that direction. And,
you know, I don't want to say that it is just a matter of trips
and falls in the mines.
But the real question is what is the--what is the Pattern
of work and what is the patter of safety considerations for
this project that we have in this vein, this type of mine, this
operation, what have we done ahead of that. And what we are
seeing is where industry is starting to adopt that, and many
have, that it does seem to change the consciousness of
everybody involved from the management to the worker in the
sense that maybe we need additional resources or protections.
Mr. Rokita. Thank you. Reclaiming my time.
Mr. Miller. Thank you.
Mr. Rokita. And assuming you asked a question, real quick,
please.
Mr. Bumbico. Can I respond to that?
Mr. Rokita. Yes.
Mr. Bumbico. I think the process I am talking about has to
take place on two levels. You have to do a risk assessment at a
major hazard level to look at what might cause an explosion and
a fire and also take that down to the employee level so that
lesser risks could be dealt with, too. And the two merge into
one culture, if it is done effectively.
Mr. Rokita. And then finally, Mr. Bumbico, the industry
supported the Miner Act of 2006. That was before my time, but I
understand that to be the case. But you did not support the S
Miner Act and most recently, the Miner Safety and Health Act.
Can you explain why industry has taken two different positions
on mine safety, in less than a minute?
Mr. Bumbico. I don't see this as taking two different
positions. I think the positions have been consistent. I think
in the case of the Miner Act, the parties were able to get
together and determine what the underlying changes needed to
be. That wasn't the case with the supplemental Miner Act.
As I mentioned earlier, there were a number of things that
were in the S Miner Act that could have been done anyway by
MSHA that didn't require a new legislation to enact them. At
the same time, there were some provisions in there, like the
definition of what was a serious and substantial violation,
that would have fundamentally changed enforcement and made it
very, very difficult for the industry to comply.
Mr. Rokita. I thank you.
I thank the witnesses.
Again, I yield, Chairman.
Chairman Walberg. I thank the gentleman.
And I also would like to, again, thank our witnesses for
taking the time to testify before the subcommittee today. It
has been enlightening for us. And I appreciate the perspective
that has come across the spectrum and the questioning coming
from the committee.
And so, now I would take time to recognize the ranking
member, the gentlelady from California, Ms. Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman.
We were hoping for a second round of questions. So I will
yield 1 minute to Congressman Payne and 1 minute to Congressman
Miller, if they want to say----
Mr. Payne. Well, just very quickly, maybe, Mr. Roberts, the
characterization of the difference between the Miner Act and
why the industry opposed it. What do you think about the S
Miner? Was it such a radical--or was it the company wanted to
write the act? Or what is the deal?
Mr. Roberts. I don't see it that way at all. And, in fact,
we supported that. We also support the Robert C. Byrd Act also.
Mr. Payne. All right. Great.
Ms. Woolsey. One minute? Okay, thank you.
Thank you, Mr. Chairman.
All this business about blaming the workers. For heaven's
sakes, I was a human resources director for 10 years of a high-
tech manufacturing company. It was so clear to me. Now, that is
not coal mining. It is not, you know, rock mining. I know there
is a difference.
But the difference is that we knew, as employers, as the
bosses, that it was our job to put together safety policies
that our employees followed. If they didn't follow it, we had
disciplinary programs in place. Because if you don't follow the
safety rules and you are going to risk your life and anybody
else's, that is a disciplinary problem.
And we also had really--it doesn't sound like it when I am
going on and on like this. But we had really good employee/
employer relations. That makes a difference. We had a safety
committee. We had 800 employees, so it is not like we had 12
people.
And, you know, you can do it. And you cannot blame the
worker. You can't blame the worker when the worker--we had
suggestion boxes. If the person that had those seals knew about
the water seals or anything close to it couldn't get through
their manager or through their bosses, they would have put it
in the suggestion box. Somebody would have heard it and cared
about it.
So, you know, if you want to modernize, then these
industries have to join the 21st century and work with their
employees. And you want partnerships? It is the employer/
employee partnership.
So, Mr. Chairman, thank you. We have built a foundation
through numerous hearings and several Congresses for overdue
mine safety reform legislation.
And last year under Chairman Miller's leadership, we
brought reform legislation to the floor following consultation
with the Upper Big Branch miners and their families and the
mining industry, academics, state mine safety regulators, the
inspector general and many, many others. It is not like we did
this in a vacuum.
Regrettably, opponents of the bill argued that it was
premature to act before the investigations had been completed
at Upper Big Branch. Well, this is a misleading argument
because after conducting its investigation for over a year,
MSHA persuasively argues that it knows enough about the
accidents to justify making immediate changes to the Mine Act.
So we can keep throwing challenges in the way, or we can
prevent future accidents. That is up to us. I agree with Mr.
Roberts. We can keep talking about this until another accident
happens, or we can act on it.
And I want to act on it with you, Mr. Chairman. Thank you
very much.
Chairman Walberg. I thank the gentlelady. And I would
certainly concur that we want to act--that we want to act
appropriately. We want to act with reason. And we want to act
with common sense, though that may not be so common anymore in
the world today.
We want to certainly not blame workers unnecessarily. We
would not--we don't want to blame the employers and the mine
owners, the operators unnecessarily, either. We want to
encourage--and I give credit to workers for good sense and for
good experience that can expand our capabilities of moving
forward in this area.
And I think that is the reason for hearings like this and
hearings that I would assure you with all good intentions of
moving forward in the appropriate fashion, to make sure that,
number one, we have a safe workplace for our--for our mine
workers, but we also have a workplace for our mine workers that
will go on with some security and that we will encourage that
honorable profession to continue for as long as we need the
product.
I certainly remember my experience as a United Steel worker
working at U.S. Steel South Works, Southside of Chicago. I
certainly understand the impact of having union and management
work together. I certainly understand the frustrations that
were there at times.
I certainly understand being a--being a steel worker
working on a mobile platform or working on the platform related
to the to the--to the steel heat itself and having the
experience of coming back to a plant, fortunately, after having
left it during a shift and not seeing the locker room there
anymore because the heat had burned through the furnace and
gone into the sewage system. That was not as a result of lack
of regulation.
That was not as a result of a desire to cut corners by the
company. That was certainly not the result of union workers
desiring that lack of safety to take place. And fortunately, no
life was lost because it was between shifts. It was operator
error, clearly, at that point. How we protect against that goes
with good regulation, good training and, again, common sense
and care taken by employee and employer.
So our purpose is to move that direction. I appreciate the
testimony we have heard today. I appreciate seeing technology
that can be used to foster improvement in the health and safety
of our workers. And we certainly, as a subcommittee and
ultimately as a full committee, want to deal with that in
appropriate fashion. I know that there is further opportunity
for giving input.
That has been left open at the beginning of this hearing
here for further information to be shared. This subcommittee is
open to that and want to have that as part of our record. So
having said that, there being no further business, the
committee stands adjourned.
[Questions for the record and their responses follow:]
U.S. Congress,
Washington, DC, May 13, 2011.
Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections, Committee on Education and the
Workforce, 2181 Rayburn House Office Building, Washington, DC.
Dear Chairman Walberg: As part of the hearing record, we ask that
you seek written clarification from a witness, Anthony Bumbico of Arch
Coal, about statements that he made during the ``Modernizing Mine
Safety'' hearing on Wednesday, May 4, 2011.
Witnesses before the Committee have the duty to provide truthful
testimony, and the Committee must take care to ensure the integrity of
its proceedings and the accuracy of the record we collect. For these
reasons, Mr. Bumbico's testimony, on behalf of both Arch Coal and the
National Mining Association, is of concern.
Specifically, Mr. Bumbico's testimony appears to be contradicted by
a final decision and order of the Federal Mine Safety and Health Review
Commission (FMSHRC) regarding unlawful retaliation against Charles
Scott Howard, an employee of Arch Coal's subsidiary, Cumberland River
Coal Company (CRCC), following his multiple disclosures to management,
and subsequent release of a videotape that documented a number of seals
leaking water at the company's Band Mill No. 2 mine in Letcher County,
Kentucky, at an MSHA public hearing.
Defective seals present a potentially lethal risk for miners
because if they break, they could lead to flooding and inundation.
Pursuant to Sec. 303(d)(1) of the Mine Act, the preshift examiner must
``examine seals * * * to determine whether they are functioning
properly'' and must note any violations of law or hazardous conditions
in the preshift examination report. It is a requirement that mine
management must countersign each pre-shift examination report, which
provides acknowledgement that management has read the preshift
examination report.
Below is the transcript of the relevant questions and answers from
the May 4 hearing:
``Mr. Miller. What happened to the person that you fired for
showing the video of the leaking water seals?
Mr. Bumbico. I think----
Mr.Miller. Was that retaliation against a whistleblower?
Mr. Bumbico. I think you are mischaracterizing what occurred
there.
Mr. Miller. You characterize it for me.
Mr. Bumbico. Sure. One, I am not going to talk into great
detail because that issue is currently matter of civil
litigation. But I will say this: The individual questioned took
a video camera underground and did a tape of seals that were
leaking. Instead of calling that to the attention of mine
management or instead of calling MSHA and complaining about the
problem, he took the videotape and brought it to a public
hearing to show it. And then after the fact----
Mr. Miller. So he never addressed it prior--he never
addressed this prior with you, the company?
Mr. Bumbico [continuing]. The issue was dealt with. No. The
individual questioned----
Mr. Miller. I don't think that is what the record shows.''
Indeed, there is substantial evidence which contradicts the
underlined portion of Mr. Bumbico's testimony.
1. The August 13, 2010, FMSHRC decision in Charles Scott Howard v.
Cumberland River Coal Company \1\ stated that Mr. Howard notified
management on many occasions, as did others, about the leaking seals.
The opinion states: ``During the performance of his duties in March and
April 2007, Howard noted in the examination book that numerous seals at
Band Mill were `leaking water.' Howard also expressed his concern over
the condition of the seals to many mine foremen, including John
Scarbro, Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner.''
---------------------------------------------------------------------------
\1\ Docket # KENT 2008-736-D
---------------------------------------------------------------------------
2. Also according to documents included in the hearing record, in
his capacity as a preshift examiner, Mr. Howard documented in the
preshift examination book on 11 separate occasions that the seals were
leaking, as well as the fact that parts of the seals were cracked. John
Scarbro, the mine superintendent, admitted under oath during the FMSHRC
trial that Mr. Howard had informed management of the leaking seals
within the mine. The trial transcript, which is a public document,
states: \2\
---------------------------------------------------------------------------
\2\ Trial Transcript, December 16, 2008, pp. 51
Mr. Oppegard (attorney for Mr. Howard): ``Now, prior to Mr.
Howard showing the video at a public hearing, he had been
documenting in the pre-shift book that you had seals in the
Band Mill Number Two Mine that were leaking water, had he
not?''
Mr. Scarbro (Mine Superintendent): ``Yes sir.''
Mr. Oppegard (attorney for Mr. Howard): ``And in fact, Mr.
Howard had told you that those seals needed to be repaired, did
he not?''
Mr. Scarbro: ``Yes sir.''
As I previously stated, witnesses before our Committee have a duty
to provide truthful testimony. Given the questionable testimony
provided by Mr. Bumbico, its inconsistency with other official records,
and its relevance to oversight as well as pending and future
legislation, we ask that you submit these questions to Mr. Bumbico in
order to clarify the record:
1. Prior to videotaping the leaking mine seals, did Mr. Howard call
the leaking seals to the attention of management? Yes or no?
2. Did John Scarbro, the mine superintendent, receive notification
of the leaking seals? Yes or no?
3. FMSHRC's August 10, 2010, Decision and Order in Charles Scott
Howard v.Cumberland River Coal Company stated that management personnel
including Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner
were also notified of leaking seals by Mr. Howard. Is this statement
correct? Yes or No?
4. Is your testimony factually correct that Mr. Howard, ``instead
of calling that to the attention of mine management or instead of
calling MSHA and complaining about the problem, he took the video tape
and brought it to a public hearing to show it.'' Yes or no?
5. Did Arch or its subsidiary CRCC, appeal the FMSHRC August 10,
2010,
Decision and Order in this discrimination proceeding? If not, is
this judgment final?
This Committee has the obligation to maintain the integrity of its
proceedings. If there is any question about the reliability of
testimony, whether due to potential conflicts or otherwise, the
Committee should give serious consideration to the administration of
oaths to witnesses prior to their testimony.
Thank you in advance for ensuring the witness's answers to the
above questions are included in the hearing record.
Sincerely,
George Miller, Senior Democratic Member,
Committee on Education and the Workforce.
Lynn Woolsey, Senior Democratic Member,
Subcommittee on Workforce Protections.
______
------
[Whereupon, at 11:30 a.m., the subcommittee was adjourned.]