[Senate Hearing 112-782]
[From the U.S. Government Publishing Office]
S. Hrg. 112-782
A TRAGIC ANNIVERSARY: IMPROVING SAFETY
AT DANGEROUS MINES ONE YEAR AFTER
UPPER BIG BRANCH
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
EXAMINING IMPROVING SAFETY AT DANGEROUS MINES ONE YEAR AFTER UPPER BIG
BRANCH
__________
MARCH 31, 2011
__________
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Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland
JEFF BINGAMAN, New Mexico
PATTY MURRAY, Washington
BERNARD SANDERS (I), Vermont
ROBERT P. CASEY, JR., Pennsylvania
KAY R. HAGAN, North Carolina
JEFF MERKLEY, Oregon
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
SHELDON WHITEHOUSE, Rhode Island
RICHARD BLUMENTHAL, Connecticut
MICHAEL B. ENZI, Wyoming
LAMAR ALEXANDER, Tennessee
RICHARD BURR, North Carolina
JOHNNY ISAKSON, Georgia
RAND PAUL, Kentucky
ORRIN G. HATCH, Utah
JOHN McCAIN, Arizona
PAT ROBERTS, Kansas
LISA MURKOWSKI, Alaska
MARK KIRK, Illinois
Daniel E. Smith, Staff Director
Pamela Smith, Deputy Staff Director
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, MARCH 31, 2011
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Prepared statement........................................... 3
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
opening statement.............................................. 4
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 31
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky....... 34
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 35
Invited Senators
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of
West Virginia, prepared statement.............................. 7
Manchin, Hon. Joe, III, a U.S. Senator from the State of West
Virginia....................................................... 29
Witnesses
Main, Joe, Assistant Secretary, U.S. Department of Labor, Mine
Safety and Health Administration, Arlington, VA................ 9
Prepared statement........................................... 11
Lewis, Elliot P., Assistant Inspector General, U.S. Department of
Labor, Office of the Inspector General, Washington, DC......... 20
Prepared statement........................................... 21
(iii)
A TRAGIC ANNIVERSARY: IMPROVING SAFETY
AT DANGEROUS MINES ONE YEAR AFTER UPPER BIG BRANCH
----------
THURSDAY, MARCH 31, 2011
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in Room
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Enzi, Blumenthal, Isakson, Paul,
and Manchin.
Opening Statement of Senator Harkin
The Chairman. The Senate Health, Education, Labor, and
Pensions committee will please come to order.
Almost a year ago, this committee met in the wake of the
worst mining accident our history has seen in decades. On April
5, 2010, 29 miners were killed in an explosion at Massey
Energy's Upper Big Branch Mine in West Virginia.
One of the most devastating aspects of the disaster was the
overwhelming sense that the explosion was not an unfortunate
incident, but an accident waiting to happen. The mine had a
long
history of rampant safety violations.
Members of this committee were rightly concerned that this
dangerous mine had not been given more rigorous oversight, and
that the procedures we had enacted to target mines with
repeated
safety violations had not been effective in putting this mine
back on track.
We told Mr. Joe Main, at that time, the newly-appointed
head of the Mine Safety and Health Administration, that we
expected him to use every tool in his arsenal to make sure a
disaster like Upper Big Branch never happens again. Now, we are
revisiting this
devastating event 1 year later to explore what we've learned,
what changes have been made, and what further reforms may be
needed to ensure that all miners can come home safely at the
end of their shifts.
Much of the underlying evidence from the Upper Big Branch
investigation cannot be released at this time, I understand,
due to a pending criminal investigation. Nonetheless, solely
looking at what has been publicly released so far, we already
know why the 29 miners were killed in the explosion.
Small methane ignitions happen frequently in mines, but
unlike Upper Big Branch, they do not cause massive explosions.
With properly maintained conditions, those small methane
ignitions are relatively harmless.
At Upper Big Branch, large quantities of coal dust, which
were allowed to accumulate in violation of safety laws, turned
the small ignition into a massive explosion. That is why people
died. We also have strong reason to suspect that there were
active efforts to
prevent safety inspectors from doing their job at the mine.
Last year we heard testimony from one witness, miner Jeffrey
Harris, that safety laws were followed at Massey mines only
when inspectors were present.
We have also learned of at least one criminal indictment
that's been issued accusing a high-level Massey official of
providing
illegal advance warnings when inspectors were about to enter a
mine.
Now, while obviously this is an indictment, not a
conviction, it does lend some credence to Mr. Harris's
testimony that ignoring safety procedures was the norm, and not
the exception, at Upper Big Branch and at other Massey mines.
Finally, we know that the tools in the law that are
supposed to address situations like this, where an operator is
repeatedly and flagrantly disregarding safety rules were not
and they do not seem to be working. The pattern of violation
process is supposed to
target the worst actors. But as the Department of Labor's
Inspector General has found, in the 32 years since Congress
created this process, no mine has ever been placed on POV
status, largely
because MSHA has spent decades creating obstacles to prevent
this process from working effectively.
Fortunately, over the past year since Upper Big Branch,
MSHA has taken wide-ranging efforts to find problems in our
mine safety enforcement and to fix them. From the
implementation of an
aggressive impact inspection program, to an attempt to
eradicate Black Lung disease once and for all, Assistant
Secretary Main has taken an aggressive, comprehensive approach
to miner safety.
I look forward to hearing about those efforts, and how they
will allow MSHA to function more effectively. I am also
impressed that MSHA seems to have acted so quickly to fix the
substantial
problems that have often crippled the agency. Last year, for
example, MSHA submitted a report to us and this committee on
the
inadequate review of citations and assessment of the gravity of
those citations by supervisors. MSHA responded by improving its
training program, and I intend to continue to monitor the
effectiveness of this.
But in this situation, as with many of the challenges
facing our mine safety programs, I do not share the view that
Congress is
absolved of its responsibility to legislate as a result of
action by the agency.
Last year after the tragedy we began bipartisan efforts to
explore possible mine safety legislation. Unfortunately, we
were not able to find enough common ground at the time to move
forward. But now, with new information about the tragedy and
new efforts by MSHA leading the way, I hope we can restart that
process and make real progress.
To honor the 71 miners whose lives were lost last year,
both at Upper Big Branch and around the country, we must
rededicate ourselves to building a safer future for everyone
who goes to work each day in America's mines.
[The prepared statement of Senator Harkin follows:]
Prepared Statement of Senator Harkin
Almost a year ago, this committee met in the wake of the
worst mining accident our country has seen in decades. On April
5, 2010, 29 miners were killed in an explosion at Massey
Energy's Upper Big Branch mine in West Virginia. One of the
most devastating aspects of the disaster was the overwhelming
sense that the explosion was not an unfortunate incident, but
an accident waiting to happen. The mine had a long history of
rampant safety violations, and there was strong evidence that
the operator was putting profits over workers' lives.
Members of this committee were rightly concerned that this
dangerous mine had not been given more rigorous oversight, and
that the procedures we had enacted to target mines with
repeated
safety violations had not been effective in putting this mine
back on track. We told Joe Main, the newly-appointed head of
the Mine Safety and Health Administration, that we expected him
to use every tool in his arsenal to make sure a disaster like
Upper Big Branch never happens again.
Now, we are revisiting this devastating event 1 year later
to
explore what we've learned, what changes have been made, and
what further reforms are needed to ensure that all miners can
come home safely at the end of their shifts.
Much of the underlying evidence from the UBB investigation
cannot be released at this time due to a pending criminal
investigation. Nonetheless, solely looking at what has been
publicly released so far, we already know why the 29 miners
were killed in the
explosion. Small methane ignitions happen frequently in mines,
but unlike Upper Big Branch, they do not cause massive
explosions. With properly maintained conditions, those small
methane
ignitions are relatively harmless. At UBB, large quantities of
coal dust--which were allowed to accumulate in violation of
safety laws--turned the small ignition into a massive
explosion. That is why people died.
We also have strong reason to suspect that there were
active
efforts to prevent safety inspectors from doing their job at
the mine. Last year we heard testimony from one witness, miner
Jeffrey Harris, that safety laws were followed at Massey mines
only when inspectors were present. We have also learned of at
least one criminal indictment that has been issued accusing a
high-level Massey official of providing illegal advance
warnings when inspectors were about to enter a mine. While
obviously this is a criminal indictment, not a conviction, it
lends credence to Mr. Harris's testimony that ignoring safety
procedures was the norm, not the exception, at Upper Big Branch
and other Massey mines.
Finally we know that the tools in the law that are supposed
to address situations like this--where an operator is
repeatedly and flagrantly disregarding safety rules--were not
and are not working. The pattern-of-violation process is
supposed to target the worst
actors. But as the Department of Labor's Inspector General has
found, in the 32 years since Congress created this process, no
mine has ever been placed on POV status, largely because MSHA
has spent decades creating obstacles to prevent this process
from
working effectively.
Fortunately, over the past year since Upper Big Branch,
MSHA has taken wide-ranging efforts to find problems in our
mine safety enforcement and to fix them. From the
implementation of an aggressive impact inspection program to an
attempt to eradicate Black Lung disease once and for all,
Assistant Secretary Main has taken an aggressive, comprehensive
approach to miner safety. I look forward to hearing about those
efforts, and how they will allow MSHA to function more
effectively.
I am impressed that MSHA seems to have acted so quickly to
fix the substantial problems that have often crippled the
agency. Last year, for example, MSHA submitted a report to me
on the inadequate review of citations and assessment of the
gravity of those citations by supervisors. MSHA responded by
improving its training program. I intend to continue to monitor
the effectiveness of MSHA's response. But in this situation--as
with many of the challenges facing our mine safety programs--I
do not share the view that Congress is absolved of its
responsibility to legislate as a result of action by the
agency.
Some commentators have suggested that there is a dichotomy
in Congress between those who believe that MSHA needs expanded
powers, and those who believe that MSHA has all the powers it
needs but just isn't using them effectively. I think that's
exactly the wrong way to look at the issue. The question is
not: did or didn't MSHA have the tools to prevent Upper Big
Branch. The question is: what do all of us need to do to
prevent the next disaster? I have never believed that either
MSHA needs to fix the regulatory process or we need to pass new
mine safety legislation. That is a false choice. Instead, we
need to both improve the regulatory structure and pass
legislation to improve mine safety.
With congressional oversight, MSHA has taken important
steps to find problems and fix them. We need to ensure that
those efforts continue. In addition, I look forward to hearing
from the witnesses about the additional steps that Congress can
take to improve mine safety. Almost 1 year after Upper Big
Branch, we now have sufficient information to make intelligent
reforms to our mine safety laws, and we shouldn't waste any
time in doing so.
Last year, after the tragedy, we began bipartisan efforts
to explore possible mine safety legislation. Unfortunately, we
were not able to find enough common ground at the time to move
forward. But now--with new information about the tragedy and
new efforts by MSHA leading the way--I hope we can restart that
process and make real progress. To honor the 71 miners whose
lives were lost last year, both at Upper Big Branch and around
the country, we must rededicate ourselves to building a safer
future for everyone who goes to work each day in America's
mines.
With that I'll turn to Senator Enzi for his opening
statement.
Opening Statement of Senator Enzi
Senator Enzi. Thank you, Mr. Chairman, and good morning.
This hearing marks a very tragic anniversary. As the
Chairman mentioned, it was a year ago today, 29 West Virginia
miners went to work in difficult jobs to provide for their
families and fuel our Nation's economy when they were lost in a
single accident.
The families of those men have had to sacrifice too much,
but just as they have no doubt found ways to honor their loved
one's memory over the past year, I believe the safety of mining
in America will improve because of this accident and a life
somewhere will be saved because of their loss.
Since we do not yet have an official report on the cause of
the Upper Big Branch tragedy, the Chairman has called this
hearing to focus on general mine safety issues. I appreciate
the appearance of Assistant Secretary Joe Main and Elliot Lewis
from the Inspector General's Audit office to testify about this
Administration's effort to improve mine safety.
Frankly, some of the news coming out of the Administration
is not encouraging. Since the accident last year we have
learned that MSHA knew of problems at Upper Big Branch and
failed to use the full extent of its authority to improve
safety there. The Upper Big Branch mine was even slated to be
put on a proposed Pattern of Violation notice for increased
enforcement, but a computer glitch at MSHA eliminated the
warning.
Two Inspector General reports have highlighted major
concerns about MSHA's dysfunctional pattern of violations
process and concerns about the quality of training MSHA
inspectors receive. I look forward to hearing more about those
reports from Mr. Lewis this morning.
I was also disturbed to read about a report sent from
MSHA's Office of Accountability to you, Mr. Chairman, in your
capacity as Chairman of the Labor, Health and Human Services
Appropriations Subcommittee. That was sent on March 25, 2010. I
read about this report in the newspaper earlier this month and
saw that it found inadequate inspection documentation and
citation writing in a vast majority of the field offices
audited, as well as failure to complete required inspections in
some mines with high methane liberation.
The problems this report exposed are exactly the concerns I
spoke about at last year's hearing on this accident and tried
to address in mine safety discussions with many Senators on
today's panel last summer. It is difficult to understand why
this report has not been shared with the group working on mine
safety. I understand that Chairman Kline has an outstanding
request for all of the reports the Office of Accountability has
produced and I will be joining him in that request today.
My concern then, and even more so now that I have read this
appropriations report, is that MSHA has an outsized mandate.
The Mine Act does not allow MSHA the flexibility that the
Occupational Safety and Health Administration, OSHA, has to
focus on bad actors and requires a burdensome citation writing
process for every single violation of a standard, no matter how
minor.
Taxpayers have spent thousands of dollars training MSHA
inspectors to identify serious, life-threatening hazards and
uncover malfeasance. Why do we send them around to the safest
mines on the planet multiple times a year to write citations
for unflushed toilets and trash can lids that are ajar?
This is a serious question that I hope we can explore
together.
I visited one mine last year and the snow was falling and
it was about a quarter of an inch, and it was quickly melting,
but an employee was trying to shovel it. It was too wet and too
little to sweep or to shovel. The reason they were doing it?
Just a week before they had gotten a written citation under the
same circumstances.
In my home State of Wyoming, the mining industry and the
jobs and energy it supports are critical. The industry supports
about 43,000 jobs in Wyoming, both directly and indirectly.
Mining jobs are good jobs that pay, on average, 86 percent
higher than the average wage in the State. These jobs will
never be outsourced.
During the last 3 years, unemployment has soared to
sustained highs we have not seen in this country since the
Great Depression. Mining employment is one of the few areas
where the private sector employee has seen some moderate growth
and is not somehow dependent on Federal spending.
Of course, the mining industry would be creating far more
jobs if the economy was in a swifter recovery and if power from
coal wasn't being discouraged in the United States
In Wyoming, we work hard to keep employees safe at work.
Mines in Wyoming have developed safety programs far beyond what
MSHA requires. An Arch Coal operation called Black Thunder is
the largest surface coal mine in the country and it's located
in the Powder River Basin in Gillette, WY. This operation is
responsible for 8 percent of the Nation's coal supply, and they
have an excellent safety record.
Last year they were Wyoming's safest mine and received an
award for working more than 2 years and 6-million employee
hours without a loss-time injury. One reason they are so
successful is that they have implemented a safety program far
and above anything required by MSHA. This program periodically
pairs employees from different work groups for a shift. One of
these employee's purpose is to observe the other and identify
safety hazards that are observed.
Many of the hazards are behavioral and are easily fixed
once pointed out, explained and corrected. Employees are not
punished for any lapses, and the observing employee has
volunteered for the duty, although they are still paid by the
company. The record shows that what Black Thunder is doing is
working, but it's certainly a very different model than MSHA.
In Wyoming we don't just mine coal. We also mine trona,
soda ash, bentonite, and uranium, among other resources. While
there are some common safety concerns and practices with
underground coal, some of the hazards presented are quite
different. These differences must be recognized, and solutions
for one type of mining should not be blindly applied to others,
especially when the policy adds burdensome requirements that
will make extracting the resource more costly.
While you can't outsource mining in Green River, WY to
India, if the cost of extracting trona in Wyoming drives the
price up, buyers will obtain it from mines in China, and
hundreds of American jobs will disappear.
Talk to almost any U.S. coal miner and you will hear that
the industry does feel that this Administration's policies are
threatening the industry's future. Although the basis for the
concern goes well beyond MSHA and the subject of this hearing,
it is worth mentioning because safety regulations won't matter
if there aren't any jobs to keep safe.
Although I was pleased to hear last week that the
Administration sees a future for coal with the announcement
that they will move forward with coal leases in the Powder
River Basin, the President's overall energy policy seeks to
increase prices for Americans and seeks to limit the use of
coal.
The President's decision to allow the EPA to regulate
greenhouse gases under the Clean Air Act will kill jobs in
Wyoming and throughout the country, and there are a sizeable
number of other regulations coming down the pike that will make
it more difficult to use coal, our Nation's cheapest, most
abundant energy source.
I know that many of my colleagues here today share my
interest in keeping these jobs in America, but also making them
safer. This goal can be achieved if we include stakeholders in
policy discussions, if we work to find solutions that address
their valid concerns and agree to do the possible, instead of
holding out for political victories that will be difficult to
achieve.
I was honored to work with the former Chairman Kennedy,
Senator Rockefeller, Senator Murray, and Senator Isakson to
author the MINER Act in 2006, the first major change to the
Mine Act in a generation. In fact, I think it was 28 years. The
MINER Act has advanced mine safety technology across the board
and done much to better prepare mines to deal with emergencies.
We were able to pass it because we had the support of both
labor and industry, Republicans and Democrats and we got their
support by involving everyone in the process.
I stand ready to re-engage in that process with partners
interested in forming achievable goals, sharing information,
consulting all affected stakeholders and reaching agreement
rather than making political points. I believe this is the best
way we can honor the 29 men who died on April 5th and the 42
other miners who lost their lives at work last year.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Enzi.
It's a long-standing policy of this committee that only the
Chair and the Ranking Member make opening statements; however,
we are joined today by our esteemed colleague, Senator Manchin,
and I will obviously recognize him for questions during the
question period, but I would ask in absence that whatever
statement he may have be made a part of the record.
I also know that Senator Rockefeller wanted to be here this
morning, but was unavoidably called away. I also ask in absence
that his statement be inserted at this point into the record.
[The prepared statement of Senator Rockefeller follows:]
Prepared Statement of Senator Rockefeller IV
I would first like to thank Chairman Harkin, Ranking Member
Enzi, Senator Murray, Senator Isakson, and all the members of
this committee for holding this hearing today.
We have always had a great deal of bipartisan collaboration
on mine safety issues, and I look forward to our continued work
on this critical issue.
Often in Congress, tragic events like those that happened
at the Upper Big Branch mine in Montcoal, WV receive a lot of
attention right when they happen. Unfortunately, there is not
always the follow through that is necessary to make sure that
those tragedies do not happen again.
This hearing--and the work that the committee members and
their staffs have done over the past year--is truly a testament
to each Senator's commitment to mine safety.
As the members of this committee know, the safety of West
Virginia's coal miners is extremely important to me. Their job
is hard, it is dirty, and it is dangerous--but it is absolutely
necessary to keep our country running.
It is impossible to put into words how devastating the
Upper Big Branch disaster has been to West Virginia's mining
community. I was there with the families as they hoped and
prayed for 29 husbands, fathers, brothers, sons, and
grandsons--and I made a commitment that day to not rest until
we made every improvement necessary to our mine safety laws.
Over the past year, we have seen important improvements in
the enforcement of our mine safety laws. The Mine Safety and
Health Administration has:
initiated 228 ``impact inspections'' that target
mines with poor compliance;
pursued, for the first time ever, injunctive
authority to stop hazardous mining conditions;
issued emergency rock-dusting standards to prevent
explosions;
proposed important revisions to the broken
``Pattern of Violations'' process; and
conducted more outreach to operators on safety and
compliance standards.
Congress has also taken steps to improve mine safety. We
provided an additional $22 million to help reduce the backlog
of appeals at the Federal Mine Safety and Health Review
Commission--a backlog that has only served to delay safety.
We also enacted into law an amendment that I offered to the
Wall Street reform law that requires disclosure of serious
safety violations to the Securities and Exchange Commission.
This law makes sure that safety violations are known to
investors and impact a company's bottom line.
While these are important and necessary improvements, they
are only incremental. There is much more we can and should do
today to improve mine safety, increase accountability, make our
enforcement more efficient, and protect miners who speak out
about unsafe conditions.
Even as the civil and criminal investigations into the
Upper Big Branch disaster continue, we must remember that
Congress' obligation to learn from these tragedies and adjust
our laws where necessary is not put on hold.
I have always believed that our country has a continuing
obligation to make sure that coal miners--and all workers for
that matter--can go to work, do their jobs, and return home
safely to their families at the end of the day.
I know that the Upper Big Branch families are still looking
for answers and are still looking for action. If there is one
message that I would like to relay to them today, it is that we
have not forgotten the miners. I stand with them today in my
commitment to improve mine safety for future generations.
I thank the Chair.
The Chairman. And, now, Mr. Joseph Main, the Assistant
Secretary of Labor from Mine, Safety and Health Administration
for more than 40 years, has worked to improve every aspect of
miner health and safety, both in the United States and
internationally.
Mr. Main began working at coal mines in 1967, and he
quickly became an advocate for miners' safety and health. In
1982, he was appointed the administrator of the United Mine
Workers of America Occupational Health and Safety Department, a
position he held for 22 years.
Mr. Main has extensive hands-on experience inspecting and
evaluating mining conditions, plans, and systems and has been
involved in a number of mine emergencies and accident
investigations.
We welcome Mr. Main back to the committee.
Our second witness is Mr. Elliott Lewis, the Assistant
Inspector General for Audit, Office of Inspector General of the
U.S. Department of Labor.
Prior to his current position, he served as the Deputy
Assistant Inspector General for Audit. Before joining the
Federal Government, he was a partner at T.R. McDowell and
Company, CPAs in Columbia, SC from 1986 to 1991.
Both your statements will be made a part of the record in
their entirety.
We'll start, of course, with Assistant Secretary Main. If
you could sum it up in several minutes for us, we'd appreciate
it; then we'll go to Mr. Lewis, and follow with a question
period.
Mr. Main, welcome back.
STATEMENT OF JOE MAIN, ASSISTANT SECRETARY, U.S. DEPARTMENT OF
LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, ARLINGTON, VA
Mr. Main. Thank you, Mr. Chairman.
Senator Enzi, Senator Manchin, I appreciate the opportunity
to be here today to update you on mine safety and health,
report on MSHA's actions since the April 5th explosion at the
Upper Big Branch mine that tragically took the lives of 29
miners, and discuss why, despite MSHA's extraordinary efforts
in the wake of the Upper Big Branch disaster, legislation is
still needed to fully protect our Nation's miners.
I want to also acknowledge the families of those miners.
They carry the heaviest burden of that tragedy, and they are
constantly in our prayers.
Since I last testified before Congress 11 months ago we
have made significant progress in MSHA's investigation into the
Upper Big Branch explosion. The underground investigation,
which has been quite extensive, is nearing completion.
Based on the evidence we've gathered so far, it appears
that a low volume of methane and/or methane fuel from natural
gas provided the fuel for the initial ignition on or near the
face of the tailgate side of the vinyl longwall shearer, or
cutting machine.
Small methane ignitions are not uncommon in coal mines, but
when proper safety measures are followed, these ignitions are
generally controlled and extinguished.
Our preliminary analysis shows, however, that at Upper Big
Branch, the small ignition was not contained or quickly
extinguished. Instead, a small methane ignition transitioned
into a massive explosion, fueled by an accumulation of coal
dust that propagated the blast.
It is likely to be some time before MSHA can provide a
final report on the Upper Big Branch disaster, but we will hold
a briefing on June 29th in Beckley to share with the public the
information that we have gathered during the investigation,
including an overview of the physical evidence and summaries of
other evidence.
While we are continuing our investigation of Upper Big
Branch we know already that explosions in mines are preventable
and that a workplace culture which puts health and safety first
will save lives and prevent tragedies.
I have the deepest respect for those who choose mining as a
career. I was a miner myself. Mining is critically important to
our economy, and I believe that a commitment to safety is fully
compatible with a thriving industry.
Since Upper Big Branch, MSHA has worked hard to use every
tool at its disposal to encourage operators to live up to their
obligations, to provide a safe and healthful workplace.
One of our most effective enforcement tools has been our
impact inspections. From April 2010 through February 2011, MSHA
has conducted 228 targeted impact inspections at mines with
special concerns. We have conducted these impact inspections at
times during off hours, taking hold of phone lines to prevent
advance notice when covering key parts of the mine quickly
before hazards could be hidden or covered up.
Another important post-Upper Big Branch enforcement action
was MSHA's decision, for the first time ever, to seek a Federal
court injunction for a pattern of violations. Shortly after we
filed the action, the operator announced it was permanently
closing his mine, and agreed to a court order that ensured the
safety of miners during the shutdown, and protected the
livelihood of the displaced miners.
We've also taken important actions to improve the broken
pattern of violations program. We adopted new screening
criteria and used new criteria for 14 mines on a potential
pattern of violations. Some of these mines have successfully
reduced their violations. For the few that have not, the next
step is an evaluation by MSHA as to whether they should be
given notices of pattern violations actions.
MSHA has also published a proposed rule which would address
laws in the current rules to meet the intent of the statute.
MSHA has taken a number of other actions as well to ramp up our
efforts. This includes regulatory actions such as the
announcement of the Emergency Temporary Standard on rock dust,
and a proposed rule that would revise requirements for operator
examinations of underground mines as well as issuance of a
number of targeted compliance guidance to the mining industry.
Upper Big Branch also highlighted the importance of
addressing the growing backlog at the Federal Mine Safety and
Health Administration and we are taking several actions to
attack the problem. MSHA cannot be in every mine all the time,
and mine operators must find and fix hazards in conditions,
whether or not MSHA is there. That's their responsibility. I
believe that many mine operators want to do this and want to
run safe mines.
In order to assist the mine operators MSHA has undertaken
extraordinary education and outreach effort. I have traveled
the country speaking to miners, operators, mining organizations
and associations, and listening to their ideas and concerns.
We're working together to improve consistency in
enforcement of the mining standards; implement new compliance
programs and initiatives to improve mine safety in this
country.
The committee has a long history of standing up for our
Nation's miners. I hope that you do so again, and pass new mine
safety legislation, and quickly, as you did following the Sago
Mine disaster.
Since Upper Big Branch we've learned that there are
systemic flaws in the law that only Congress can fix.
The Administration supports legislation that gives MSHA the
enforcement tools it needs to ensure that all mine operators
live up to their legal and moral responsibility to provide a
safe and healthful workplace for all miners.
Let me mention just a few of the areas, among others, that
merit attention:
First, Congress should fix the broken POV system. There's
only so much we can do through regulations.
Second, Congress should revise MSHA's injunctive authority.
We used the provision and learned that the process may be
slower than needed to protect miners. New legislation should
provide us sufficient authority to act as soon as we believe
protecting line safety--miner safety and health--requires our
immediate action.
Third, legislation should strengthen the criminal
provisions of the Mine Act. No mine operator should be risking
the lives of its miners by cutting corners on health and
safety, but for those who knowingly engage in such practices,
we need to send them a clear message that their actions will
not be tolerated.
Finally, legislation must ensure miners are fully protected
from retaliation. Miners know best the conditions in their
mines. But as some of the surviving miners and their family
members have reported, miners are afraid to speak out because
they fear they will lose their jobs if they speak out.
I look forward to working with the committee to find the
best way to accomplish our shared goal of providing our
Nation's miners the safety and health protections they deserve.
Thank you.
[The prepared statement of Mr. Main follows:]
Prepared Statement of Joseph A. Main
Chairman Harkin, Ranking Member Enzi, and members of the committee,
I appreciate the opportunity to appear here today on behalf of the U.S.
Department of Labor, Mine Safety and Health Administration (MSHA) to
update you--nearly 1 year later--about the ongoing investigation into
the April 5, 2010 explosion at the Upper Big Branch (UBB) mine in West
Virginia that needlessly took the lives of 29 miners, and to report on
the actions that we have taken since the explosion. The accident at UBB
was the worst mining disaster since the creation of MSHA by the Federal
Coal Mine Health and Safety Act of 1969 (Mine Act) and the deadliest
coal mine disaster this Nation has experienced in 40 years. As a result
of the explosion, the need to rethink how we approach mine safety and
health to protect miners has taken on a new urgency.
I also want to discuss why, despite MSHA's extraordinary efforts in
the wake of the UBB disaster, legislation is still needed to fully
protect our Nation's miners. The safety and health of those who work in
the mines in this country is of great concern to President Obama,
Secretary of Labor Hilda Solis and me. The Secretary has articulated a
forward-looking vision of assuring ``good jobs'' for every worker in
the United States, which includes safe and healthy workplaces,
particularly in high-risk industries, and a voice in the workplace. At
MSHA, we are guided by that vision.
I arrived at MSHA over a year ago with a clear purpose--to
implement and enforce the Nation's mine safety laws and improve health
and safety conditions in the Nation's mines so miners in this country
can go to work, do their jobs, and return home to their families safe
and healthy at the end of every shift. We owe it to the memory of the
29 miners who died at Upper Big Branch and to the families that they
left behind to rededicate ourselves to protecting today's miners.
Having been involved in mining since the age of 18, I have a deep
respect for those who choose mining as a career. I have spent most of
my life with miners, mine operators and mine safety professionals. I
think we can all agree that mining is critically important to our
economy, and I believe most understand our collective responsibility to
ensure that effective health and safety standards are in place and are
followed to prevent injury, illnesses and death.
I know that it is possible for a mine to be a safe place to work
for miners and a profitable business for operators. Most of the
industry shares this belief and makes the commitment to safety because
it is not only the right thing to do, but the smart thing to do as
well. Injuries, illnesses, and fatalities have for too long taken a
toll on miners, their families, their communities and the mining
industry.
We also understand that MSHA's effective enforcement of the law
should create a level playing field, so that operators who play by the
rules and provide safe mine conditions do not have to compete against
operators who cut corners on safety.
While enforcement is the major tool at our disposal to secure
compliance with the Mine Act and health and safety standards, MSHA will
continue to partner with the industry to ensure that miners are safe
and healthy and that the industry and those who derive their livelihood
from the industry--especially those who play by the rules--continue to
thrive.
upper big branch investigation
Since I last testified before this committee in April 2010, MSHA
has made significant progress in its investigation of the explosion. I
would like to first provide a brief overview of the investigation and
then give you an update on what we have learned so far.
The investigation team was named just after the explosion, but
there was a delay in getting the team members underground due to
unstable conditions and the need to provide a safe working environment
for the investigators. The investigative team began its physical
inspection at the end of June 2010. The underground investigation--
which has been extensive--is nearing completion. MSHA has conducted
more than 260 witness interviews and has dedicated 108 enforcement
personnel to the investigation. This includes 10 mine dust survey
teams, 7 mapping teams, 3 electrical teams, 1 ventilation team, 1
geology team, 1 flames and forces team, 1 evidence collection team, and
1 inspection activities team. In addition, 45 technical support
personnel are performing testing and other technical activities related
to the investigation. Our investigative teams have combed through every
inch of the accessible parts of the mine. To date, more than 2,000
pieces of evidence have been collected and tested, including equipment,
and gas, dust and other samples. While there still is more work to be
done, MSHA is committed to completing the investigation in as timely a
manner as possible.
I want to note for the committee that while MSHA is investigating
the cause of the accident and how to prevent future, similar accidents,
the Department of Justice (DOJ) also opened its own investigation into
possible criminal wrongdoing almost immediately after the explosion.
The U.S. Attorney for the southern district of West Virginia requested
that MSHA delay its announced public hearings and the release of
witness transcripts so as not to jeopardize the separate criminal
inquiry by DOJ. MSHA has honored that request in recognition of the
President's instruction for the Department of Labor to work with DOJ to
ensure that every tool in the Federal Government is available in the
investigation of the accident. That criminal investigation is ongoing
and, on March 1, the U.S. Attorney issued the first indictment related
to the disaster. He indicted the head of Security at Performance Coal,
a Massey subsidiary, for obstructing justice and making false
statements about his role in giving advance notice of underground
inspections at the mine. We will continue to support DOJ as they work
to bring those who violated the law to justice.
Since the outset, MSHA has been conducting one of the most
transparent accident investigations in the history of the Agency. The
investigation is long and complex and, we have been releasing
information as soon as we are able, including in response to numerous
requests under the Freedom of Information Act (FOIA). It is important,
however, that we give the investigation team the ability to collect and
analyze data and other evidence before we disseminate the information
to the public. Within this framework, we have established an ``Upper
Big Branch Single Source Page'' on our Web site at: http://
www.msha.gov/PerformanceCoal/PerformanceCoal.asp to post as much
information as we can to keep the public informed about the accident.
We are continually reviewing our disclosures and pending requests for
information to determine what additional information we can release and
post to our Web site. As with past investigations, MSHA cannot
prematurely release information or documents vital to the
investigation.
In addition, we have honored our commitment to the families to keep
them as informed as we can about the findings of the accident
investigation team to date. It is critical to them that the team
conducts a thorough investigation and determines what caused the deaths
of their loved ones. To the extent that we have been able to release
information, my colleagues and I have met with the families of the
victims on a number of occasions to bring them up to date on the status
of the investigation. The last family briefing was on January 18, 2011,
when we met with the families for almost four hours. The Solicitor of
Labor, M. Patricia Smith, joined us at this briefing. In addition,
consistent with Section 7 of the Mine Improvement and New Emergency
Response Act of 2006 (MINER Act), MSHA family liaisons are in
continuous contact with the families.
To continue to be as transparent as possible, MSHA will hold a
briefing on June 29, 2011, to share with the public information
gathered during the investigation of the explosion at the Upper Big
Branch mine in Raleigh County, WV. The briefing coincides with the 1
year anniversary of the start of the underground investigation at the
Upper Big Branch Mine and will be held at MSHA's Health and Safety Mine
Academy in Beckley, WV. Although the underground investigation and
interviews are still ongoing, by June, MSHA investigators will be able
to compile additional relevant evidence in order to provide a
substantive presentation to the public.
We know that for the families, the past year has been incredibly
difficult and that the investigation is taking more time to finish than
we had originally thought. The families have been very much in our
hearts and prayers as we work to conclude this complex investigation as
quickly as possible.
We also have held regular briefings for the committee leadership
and your staff on the status of the investigation and our preliminary
findings.
When I testified last April, the investigation team had just been
selected, and there was little I could tell you about what caused the
explosion at Upper Big Branch. In the intervening months, we have
learned a tremendous amount. Based on the evidence that the team has
gathered to date, it appears that a low volume of methane and/or
methane fuel from natural gas provided the fuel for the initial
ignition on or near the face of the tailgate side of the longwall
shearer, or cutting machine. Small methane ignitions are not uncommon
in coal mines, but when proper safety measures are followed, these
ignitions are generally controlled or extinguished by proper
ventilation and safety equipment on the longwall shearer, such as
mining bits and water sprayers.
The evidence to date shows, however, that at Upper Big Branch, the
small ignition was not contained or quickly extinguished. The analysis
also indicates that a small methane ignition transitioned into a
massive explosion, fueled by an accumulation of coal dust that
propagated the blast.
While the investigation is not complete, and it is likely to be
several months before MSHA is able to issue a report, we do know
already that explosions in mines are preventable. Most importantly, we
know that a workplace culture that puts health and safety first will
save lives and prevent tragedy.
msha's actions after upper big branch
The tragic events of April 5th at the Upper Big Branch mine changed
the lives of many people--the miners' families, their communities,
miners around the country, and those of us at the Department of Labor
dedicated to mine safety. When the Secretary and I sat with the
families on those fateful days following the explosion, waiting for
news of their loved ones, we committed to them that MSHA would act
boldly to prevent another similar disaster. President Obama reiterated
that promise when shortly after the accident he told the Nation that
``we owe [those who perished in the UBB disaster] more than prayers. We
owe them action. We owe them accountability.''
The MSHA team has pulled together and worked hard to make good on
the President's promise. We are using every tool at our disposal,
including ramped-up enforcement, targeted upgrades in our regulations,
and education and outreach.
One of our most effective enforcement tools has been our impact
inspections. After the disaster at the Upper Big Branch mine, MSHA
began to conduct strategic ``impact'' inspections at coal and metal and
nonmetal mines that needed greater attention. From April 2010 through
February 2011, MSHA conducted 228 impact inspections at mines with
special concerns. These inspections are ongoing. Targeted mines are
those that could be at risk of explosion, mines with poor compliance
histories or histories of accidents or fatalities, or mines with other
warning signs, such as efforts to cover up violations, hotline
complaints or mines with poor examination procedures. MSHA has also
conducted inspections at mines with recurring problems dealing with
adverse physical conditions or that have a poor safety culture.
From testimony by Jeffrey Harris--a former Massey employee who had
spent time at UBB in 2006--before this committee last April, and again
from witnesses at a field hearing conducted by the House Education and
Workforce Committee in May 2010, we heard the different ways in which
operators would use their knowledge of our inspection methods to hide
the violations they were committing. For example, Mr. Harris testified
that miners at UBB were ordered to put up ventilation curtains when
inspectors were in the mine, but to take them down as soon as the
inspectors left.
Therefore, MSHA has conducted these impact inspections in a way
that has shaken up even the most recalcitrant operators. MSHA has shown
up at their mines during ``off hours,'' such as evenings and weekends.
In some cases, MSHA has taken hold of the mines' phone lines upon
arrival to prevent unscrupulous operators from giving advance notice of
the inspectors' presence at the mine. Our inspectors have gone into
those mines in force, with sufficient personnel to cover the key parts
of the mine quickly before hazards could be hidden or covered up.
The results of the impact inspections have been significant. MSHA
inspectors have issued more than 4,200 citations and 396 orders for
violations of mine safety and health laws, rules and regulations during
these targeted inspections--and miners are safer because we conducted
those inspections. Some of the conditions and violations MSHA found
during impact inspections are quite disturbing.
For example, in July 2010, MSHA inspectors commandeered company
phones during the evening shift at a mine in Claiborne County, TN, to
prevent surface personnel from notifying workers underground of MSHA's
presence on the property. Inspectors found numerous ventilation, roof
support and accumulation of combustible materials violations. These
types of conditions potentially expose miners to mine explosions and
black lung disease. The operator was also mining into an area without
necessary roof support, placing miners at further risk from roof falls.
In all, MSHA issued 27 citations and 11 orders as a result of that
inspection.
Unfortunately, the mine operator did not get the message. MSHA has
now conducted four impact inspections at the mine, based on its ongoing
compliance problems and apparent disregard for the law, and in November
2010, the mine was issued a potential pattern of violations notice.
During the December 2010 impact inspection--after the potential pattern
of violations letter went out--inspectors issued four orders for
substantial accumulations of combustible coal dust of up to 24 inches
in depth covering extensive areas where miners work and travel, and for
not properly maintaining a lifeline in the mine's secondary escapeway.
Coal and rock dust on the lifeline and reflective markers would have
made it more difficult for miners to escape to the surface in the event
of an emergency. During the next regular safety and health inspection
at the mine on January 19, 2011, MSHA found more violations for
accumulations of combustible materials, not maintaining proper
clearance on a belt line and inadequately supported ribs--these
violations required equipment to be shut down, which effectively closed
the mine to production, except for maintenance personnel. The mine has
made improvements, but only after MSHA placed it in MSHA's pattern of
violations program.
During another impact inspection in September 2010 at a mine in
Boone County, WV, MSHA inspectors arrived in the middle of the evening
shift and prevented calls to warn those working underground. Inspectors
found that the mine was making illegal deep cuts into the coal seam. In
addition, many areas of the working section were without adequate
ventilation while these excessive cuts were being taken, exposing
miners to the risk of explosion and black lung. The inspection revealed
that air readings were not being taken during the work shift and that
mine ventilation was being short-circuited. In one particular area,
suspended coal dust was so thick it was difficult to see the massive
continuous mining machine in operation nearby. Again, these are
conditions that can also result in explosions and cause black lung. The
inspector issued 11 closure orders during that inspection.
Another important post-UBB enforcement action was MSHA's decision--
for the first time since the passage of the Mine Act--to seek a Federal
court injunction under the Mine Act's ``pattern of violation''
injunction section. We filed the injunction action against Massey
Energy's Freedom Energy Mining Company's No. 1 mine located in Pike
County, KY. The mine had a pattern of violations of mandatory safety
and health standards, which in our view, constituted a continuing
hazard to the health and safety of the miners working at the mine. From
July 2008 to June 2010, MSHA had issued 1,952 citations and 81 orders
to the company for violating critical standards including improper
ventilation, failure to support the mine roof, failure to clean up
combustible materials, failure to maintain electrical equipment, and
failure to conduct the necessary examination of work areas.
Shortly after we filed the action, the operator announced it was
permanently closing its mine and moving the miners to other mines it
owned in the area. It agreed to a court order that ensured the safety
of miners during the shutdown process and protected the livelihood of
the displaced miners.
MSHA has also evaluated other mines for possible injunctive relief,
and we will continue to use this remedy when mines are engaged in a
pattern of violations and miners are faced with continuing hazards to
their safety and health. Yet despite a successful result in the case
against Freedom Energy, that case demonstrates that injunctive court
actions will not always proceed quickly or result in instant relief.
MSHA has also issued new enforcement policies and alert bulletins
addressing specific hazards or problems to ensure that miners and mine
operators understand important enforcement policies. We have addressed
topics such as the prohibition on advance notice of MSHA inspections,
mine ventilation requirements that protect against mine explosions and
the right of miners to report hazards without being subject to
retaliation.
I have said that the pattern of violations, or POV process, is
broken and MSHA is committed to fixing it. In the provision's 33-year-
old history, no mine has ever been subject to the full measure of the
law contemplated by Congress. While we were reviewing the POV process
prior to the UBB disaster, the incident heightened the urgency of
moving forward with reforms. Therefore, in October 2010, we put new
screening criteria in place for the POV program. This was a critical
first step in reforming the current POV program to give the Agency an
effective enforcement tool to address mines that repeatedly violate
safety and health standards. Notifications of potential pattern of
violations have been sent to 14 mines using these new screening
criteria and procedures. To date, nine of these mines have completed
their evaluation period. Eight mines met their improvement goals for
reducing serious violations, and two mines did not. The two mines that
did not meet their goals now have the opportunity to submit a response
to MSHA's evaluation report, and after review MSHA will determine in
each case whether the mine will be given notice of a pattern of
violations. Additional mines are still under review for potential
pattern of violation actions.
The next step in fixing the broken POV program was the proposed
revisions to the existing regulation. As promised, on February 2, 2011,
we published a proposed rule on POV, which would revise the existing
regulation to reflect the intent of Congress when it wrote the POV
provisions, such as not limiting MSHA to looking at enforcement actions
that have resulted in final orders and eliminating the potential POV
process. MSHA also accelerated other regulatory actions after UBB.
Comments on this proposal are due April 4, and I would welcome any
comments you might have for the rulemaking record. A public hearing
will be scheduled on the proposed rule.
On September 23, 2010, MSHA issued an Emergency Temporary Standard
on increasing the incombustible content of combined coal dust, rock
dust and other dust in coal mines to minimize the potential for coal
dust explosions. This ETS is based on research findings and
recommendations by the National Institute for Occupational Safety and
Health (NIOSH), within the Department of Health and Human Services. As
discussed above, we strongly believe that coal dust played a role in
the UBB disaster.
The UBB disaster highlighted the need to ensure that mine operators
take seriously their obligation to find and fix the hazards in their
mines, even when MSHA is not looking over their shoulders. On December
27, 2010, therefore, MSHA published a proposed rule that would revise
requirements for pre-shift, on-shift, supplemental and weekly
examinations of underground coal mines. The proposed rule would require
that operators identify and correct violations of mandatory health or
safety standards and review with mine examiners on a quarterly basis
all citations and orders issued in areas where examinations are
required. This rule would re-
instate requirements in place for about 20 years following the passage
of the 1969 Mine Act.
The UBB disaster also enhanced the urgency of our need to address
the backlog of cases at the Federal Mine Safety and Health Review
Commission (FMSHRC). We have taken a number of actions to attack this
problem. First, we are being good stewards of the supplemental
appropriations that Congress provided for the Department and FMSHRC to
reduce the backlog. The extra resources are helping us to resolve
cases, and we continue to explore ways in which we can reduce the
number of contested cases.
Last fall, I also launched a pre-contest conferencing pilot program
in 3 MSHA districts. The pilot program allows the mining industry to
meet on the local level with MSHA to resolve differences over citations
and orders before they are contested and add to the backlog. We are
currently assessing the pilot program to determine how we can improve
consistency and implement the conferencing program throughout MSHA to
provide opportunities to resolve disputes before citations and orders
are contested. Just last month, MSHA held a stakeholder meeting with
representatives from the coal and metal and non-metal industries and
labor to discuss the pilot project and share ideas for an effective
pre-contest process. Although it is too early to see the impact, I
believe an effective pre-contest conference program could be an
important tool in resolving disputed violations so they do not become
part of the backlog.
Finally, the UBB disaster reinforced my concerns about MSHA's mine
emergency response capabilities. I had already ordered a review to
identify gaps in the system before UBB. Sadly, I saw many of those gaps
first hand at the UBB site, such as inadequate communications and
emergency equipment coordination.
MSHA has made major progress in this area. MSHA's new state-of-the
art mobile command center based in Pittsburgh is in service and nearing
full operational capability. The mobile command will improve MSHA's
capacity to provide better communications, advice and guidance during a
mine rescue and recovery. At the UBB site, I had difficulty
communicating with the Department's headquarters, and even with MSHA
emergency response staff who were in the vicinity of the mine. Our new
mobile command should help correct these difficulties. In addition,
MSHA is updating its technology, developing standard operating
procedures and implementing more comprehensive command and control
training for the MSHA district personnel that would be responding to
mine emergencies.
As a result of these improvements, we are better able to respond to
and manage mine emergencies, but as MSHA continues its thorough review
of emergency plans and procedures to identify and fix gaps in the
system, we know that more needs to be done. For example, some mine
operators do not have available mine emergency equipment and are not
prepared to quickly respond to emergencies. We are working with the
mining industry, State agencies, drilling companies and others to
identify areas for improvement in overall mine emergency response and
equipment needs.
Something that should not go unnoticed is that the 2006 MINER Act
greatly enhanced our mine rescue response to the Upper Big Branch
tragedy. The MINER Act improved the number, availability and quality of
training of mine rescue teams. I can tell you that I and the other mine
emergency personnel who coordinated the rescue efforts at Upper Big
Branch greatly appreciated this improvement in mine rescue team
strength and preparedness.
education, outreach and compliance assistance
As I said at the outset, I believe that most mine operators want to
run safe mines. In order to reach and assist these mine operators, MSHA
has ramped up its education, compliance assistance and outreach.
First, we have made it a priority to educate mine operators,
contractors, miners, trainers and others about how to prevent injuries
and fatalities in mines. Let's remember that it was not just the Upper
Big Branch disaster that led to mining deaths in 2010. In addition to
the 29 miners who died at UBB, 42 other miners died on the job last
year for a total of 71 miners, compared to 34 in 2009. And most of
these non-UBB related deaths are the types that are recurring in the
mining industry.
Despite the attention paid to coal mine fatalities in the media,
more miners have died at metal/nonmetal mines than in coal mines, even
though the fatality rate is lower for those individuals. From 1990
through 2010, and not including black lung-related deaths, 838 miners
perished in metal/nonmetal mines as compared to 820 miners who died at
coal mines. Additionally, over 80 percent of the metal/nonmetal
fatalities occurred at surface mines, and a majority of the fatalities
were at mines with 20 or fewer employees. I have spoken to members of
the mining industry and those who train miners about the causes of
these accidents and the practices that can prevent them. We know how to
prevent these deaths, but more must be done to put that knowledge to
work.
One way to put that knowledge to work is to ensure that the
industry is more proactive about safety. Operators should have
effective safety and health management systems in place, because these
are the best vehicles for establishing a culture of safety in mining
workplaces. Well-designed safety and health systems should be developed
with everyone in the company involved--from the CEO to the miners. If
properly implemented, these systems ensure that operators routinely
find and fix hazards in their mines instead of waiting for MSHA to find
them. If MSHA can identify problems in a mine, so can a mine operator.
We have begun the process of involving our stakeholders in our plans to
move forward by already holding three public meetings on the efficacy
of an MSHA safety and health program standard.
We also have had several successful, targeted education campaigns
last year. For example, in early 2010, we launched a new program called
``Rules to Live By.'' This is a fatality prevention initiative focusing
on 13 frequently cited standards in metal and nonmetal mining and 11
frequently cited standards in coal mining that most commonly caused or
contributed to fatal accidents over a 10-year period. This effort
combines education and outreach on the front end, followed by enhanced
enforcement by MSHA.
In November 2010, we initiated a second phase of ``Rules to Live
By'' focusing on 9 coal safety standards aimed at preventing other
catastrophic accidents. We have posted on the MSHA Web site information
on the ``Rules to Live By'' initiative and the training module used to
instruct inspectors on how to handle enforcement of the targeted
standards to allow the mining industry to have access to the training.
This program will also improve our consistency in enforcing standards.
Also in 2010, we initiated a resource page on our Web site for the
metal and nonmetal industry that includes a ``Compliance and Updates''
section. And just this year, MSHA released ``Safety Pro in a Box,'' a
resource intended to provide meaningful compliance assistance to small
and new operators in the aggregates industry. This safety tool box,
which provides helpful compliance guides, was suggested by the National
Stone, Sand and Gravel Association (NSSGA) and developed with the
association's assistance.
Quality training is another important component in making our mines
safer. Mine operators and contractors need to train miners and mine
supervisors on the conditions that lead to deaths and injuries, as well
as on measures to prevent them. This is an industry in transition as
new miners are replacing the aging workforce. MSHA is working with the
mining industry to help ensure that education, training and knowledge
transfer keep pace with that transition and does not undercut health
and safety gains made over the years.
Moreover, to promote better understanding of the mining industry's
concerns with MSHA's enforcement program and to improve mine safety and
health, MSHA has entered into alliances with a number of mining
associations, including the NSSGA, the Industrial Minerals Association-
North America and the Portland Cement Association. MSHA's Administrator
for Metal and Nonmetal and I have met frequently with these groups and
with many State aggregate associations across the country about their
concerns.
MSHA is also teaming up with the Interstate Mining Compact
Commission, an organization which represents State mining agencies, to
coordinate a Federal and State effort that promotes a culture of safety
and encourages mine operators to live up to their responsibilities to
provide safe and healthful workplaces, to fully comply with State and
Federal requirements and to provide effective training for their
miners.
One important outgrowth of our outreach to our stakeholders is
MSHA's renewed attention to improving consistency in the citations
issued by MSHA's inspectors. To address the concerns that we have heard
about consistency, we've taken several steps including a review of
enforcement actions to ensure that MSHA policies and procedures are
followed; a review of agency inspection procedures; field inspection
audits to improve inspections; training of Conference Litigation
Representatives (CLRs); and mandatory, comprehensive, refresher
training for all inspectors. In 2010, we developed a new 2-week
training program for all MSHA field office supervisors to improve the
quality and consistency of enforcement. As previously noted, we are
working on establishing an effective pre-contest citation and order
conference procedure that will provide earlier opportunities to resolve
disputes. We also hope that the conferences will serve as learning
experiences for both operators and MSHA personnel so that discrepancies
in citations can be corrected going forward.
eradicating black lung
On the health front, MSHA continues to move forward on its ``End
Black Lung--Act Now!'' initiative, which is a comprehensive strategy to
fulfill the promise made 40 years ago with the passage of the 1969
Federal Coal Mine Health and Safety Act to eradicate Black Lung.
According to NIOSH, in the past decade, thousands of miners have died
from Black Lung disease. Black Lung still kills hundreds of former coal
miners each year and severely impairs the lives of many more; there are
alarming indications that it is on the rise, even in younger miners.
In December 2009, we launched Phase I of the initiative, which
includes education, outreach and enforcement. In October 2010, we
launched Phase II by publishing a proposed rule, which would address
shortcomings in the sampling process; lower the existing exposure
limits for respirable dust; take advantage of new technology for
measuring exposure--the continuous personal dust monitor; and expand
medical surveillance, so that miners can take proactive steps to reduce
hazardous exposures and better manage their health. As required by the
Mine Act, we have addressed economical and technological feasibility in
our proposed rule. On February 15, MSHA concluded a series of public
hearings held across the country on this proposed rule, and we are
encouraging all interested parties to submit comments by May 2, 2011.
need for legislation
This committee has a long history of standing up for our Nation's
miners. It has never subscribed to the myth that mining fatalities are
an inevitable aspect of the business. I am asking you to again stand up
for miners and pass new and needed mine safety legislation.
Almost 1 year has passed since we lost those 29 miners at Upper Big
Branch. We have learned much in that time. One important lesson we have
learned is how to better use all of MSHA's available tools and
strategies to fully enforce the Mine Act--including targeted
enforcement, regulatory reforms and compliance assistance. The
strategies the Agency has used for its impact inspections have been
largely successful. In addition, proposed regulatory actions, if
implemented, will make operators more responsible for finding and
fixing violations and will highlight those mines with continuing
problems. Our extraordinary compliance assistance and outreach efforts
also will ensure that operators who want to do the right thing have the
tools they need to avoid violations and hazards.
To make MSHA truly effective in cracking down on serial violators
who seem indifferent to miners' health and safety, MSHA needs
additional tools that only Congress can provide. We need to change the
culture of safety in some parts of the mining industry, so that they
are as concerned about the safety of their miners when MSHA is not
looking over their shoulders as when MSHA is there--because MSHA cannot
be there all the time. The Administration supports legislation that
gives MSHA the enforcement tools it needs to ensure that all mine
operators live up to their legal and moral responsibility to provide a
safe and healthful workplace for all miners.
I hope that we can work together across the aisle and across the
branches to address at least the following areas:
Pattern of Violations: There is a reason that no Administration--
Democratic or Republican--has figured out how to effectively apply the
current statutory POV program. It is broken and can be improved only so
much through regulation. For example, under some circumstances, the POV
provisions of the existing Mine Act could potentially put some mines in
POV status indefinitely while, under other circumstances, it would be
insufficient to ensure long-term change. While we believe we are making
significant improvements to the POV program within the confines of the
current statute, changes to the law that provide MSHA the tools to
engage in a long-term, more remedial approach with chronic violators
would be a significant improvement to current law.
Injunctive Relief: The current law does not have a ``quick fix'' to
ensure the immediate safety of miners at mines like the Freedom Energy
Mine, where MSHA for the first time ever sought an injunction for a
pattern of violation under section 108 of the Mine Act, to change a
culture of non-compliance that threatened the safety and health of the
miners. While MSHA was successful in compelling the mine to implement
additional safety and health protections under section 108(a)(2), the
current statute could be simplified to help MSHA in making its case.
The lesson learned is this: the litigation process under the existing
law is time consuming and does not adequately protect miners, and new
legislation should consider language that clearly provides the
Secretary of Labor with sufficient authority to act when she believes
protecting miner safety and health requires immediate action.
Criminal Penalties: Legislation should strengthen the criminal
provisions of the Mine Act. No mine operators should be risking the
lives of their workers by cutting corners on health and safety, but for
those who would engage in such a practice, we need to put new weight on
the side of protecting the lives of miners. We hope and intend that
criminal prosecutions under an enhanced Mine Act would continue to be
rare. Now they are rare, however, because of the serious obstacles to
successful prosecutions. We hope that with new legislation they will be
rare because a more serious law will provide a successful deterrent.
These enhanced criminal penalties should also extend to those who
provide advance notice of MSHA inspections. In the aftermath of UBB,
there were troubling reports of some operators providing advance notice
of an MSHA inspection in order to hide violations and conduct that put
miners at serious risk. This is an intolerable evasion of the law that
is all too common. Increasing existing criminal penalties for these
tactics would send a clear message that this behavior will not be
tolerated.
Whistleblower Protection: New legislation must ensure miners are
fully protected from retaliation for exercising their rights. Because
MSHA cannot be in every mine, finding every hazard every day of the
week, a safe mine requires the active involvement of miners who are
informed about health and safety issues and can bring dangerous
conditions to the attention of their employer or MSHA before these
conditions cause an injury, illness or death. Yet, as we heard from
miners and family members testifying at the House Education and Labor
Committee's field hearing in Beckley last year, miners were afraid to
speak up about conditions at Upper Big Branch. They knew that if they
did, they could lose their jobs, sacrifice pay or suffer other negative
consequences.
The Mine Act has long sought to protect from retaliation those
miners who come forward to report safety hazards. But it is clear that
those protections are not sufficient and many miners lack faith and
belief in the current system. Legislation that creates a fairer and
faster process is urgently needed.
conclusion
Thank you for allowing me to testify before the committee. This
coming Tuesday is the 1-year anniversary of the tragedy at Upper Big
Branch. Along with the families, we mourn the deaths of these 29
miners. I know their loved ones want answers about what happened on
that day, and so do I. The team is moving forward with the
investigation.
Going forward, it comes down to this: MSHA cannot be at every
mining operation every shift of every day. There could never be enough
resources to do that, but even if there were, the law places the
obligation of maintaining a safe and healthful workplace squarely on
the operator's shoulders. Improved mine safety and health is a result
of operators fully living up to their responsibilities. Taking more
ownership means finding and fixing problems and violations of the laws
and rules before MSHA finds them--or more importantly--before a miner
becomes ill, is injured or is killed. Mines all across this country
operate every day while adhering to sound health and safety programs.
There is no reason that every mine cannot do the same.
I look forward to working with the committee to find the best way
to accomplish our shared goals of preventing another mine disaster and
providing our Nation's miners the safety and health protections they
deserve. We owe the victims of the Upper Big Branch disaster and their
families no less.
The Chairman. Thank you very much, Mr. Secretary.
Mr. Lewis, welcome to the committee. And, as I said, your
statement will be made a part of the record. If you could sum
it up, I would appreciate it.
STATEMENT OF ELLIOT P. LEWIS, ASSISTANT INSPECTOR GENERAL, U.S.
DEPARTMENT OF LABOR, OFFICE OF THE INSPECTOR GENERAL,
WASHINGTON, DC
Mr. Lewis. Good morning, Mr. Chairman and members of the
committee. Thank you for inviting me to testify today in my
capacity as the Assistant Inspector General for Audit at the
Department of Labor.
I am pleased to discuss the OIG's oversight work relative
to the Mine Safety and Health Administration and specifically
our report on MSHA's Pattern of Violations or POV Authority.
POV authority is an important tool that lets MSHA take
enhanced enforcement actions when a mine demonstrates recurring
safety violations that could significantly and substantially
contribute to the cause and effect of health and safety issues.
Once MSHA notifies a mine it demonstrates a potential
pattern of violations, the mines take immediate action to
reduce future significant and substantial violations or face
tougher sanctions.
In response to a congressional request, the OIG conducted
an audit to determine how MSHA had used its POV enforcement
authority.
When we completed our audit in September 2010, we concluded
that in 32 years, MSHA never successfully exercised its POV
authority. Specifically, our audit found that MSHA did not
implement regulations for administering its POV authority until
1990.
The regulations require the use of final citations and
orders in determining a POV; appeal a warning period, both of
which were not required in the Mine Act.
We also found that MSHA did not verify the implementation
of mine operators' written POV corrective action plans.
While MSHA District personnel reviewed and discussed with
mine operators the plans they submitted, we found that MSHA did
not approve, disapprove or monitor those plans.
Our third finding was that MSHA's POV computer application,
implemented in 2007 contained logic errors, inconsistencies
with the stated selection criteria, and an anomaly in one of
the spreadsheet's formulas.
The computer application errors had the potential to
incorrectly include mines that had not met the POV screening
criteria, as well as to exclude mines that had met the POV
criteria.
We found that delays in MSHA's testing of rock dust samples
from underground coal mines could cause critical delays in MSHA
identifying serious safety hazards, including the risk of
explosions.
We found that MSHA had no performance standard for the
timeliness of testing these samples, but established a 19-day
standard before the completion of our audit. We subsequently
raised concerns that a 19-day standard did not convey an
appropriate level of urgency for completing these tests.
Finally, we conducted several what if analyses aimed at
demonstrating the impact of various changes to the POV model
criteria. We found that changing certain criteria, most
notably, the requirements to use final orders, significantly
affected POV screening results.
In subsequent work we found that improvements in a mine
safety record as a result of the POV process was not always
sustained.
Mines receiving a potential POV notification reduced their
rate of significant and substantial violations by an average of
63 percent in the first subsequent inspection period. However,
this rate declined to 51 percent after eight inspection
periods.
We made 10 recommendations; among these are evaluating the
appropriateness of requirements in the POV process that were
not included in the Mine Act, establishing guidance on the
preparation, review, and monitoring the mine operators' POV
corrective action plan, and reevaluating the performance
standard for timely completion of laboratory tests of rock dust
or any other samples that yield enforcement-related data.
Our oversight work in the area of mine safety and health
continues. We currently have one audit in progress to determine
whether MSHA effectively and timely collects civil penalties
from mine operators.
In the near future, we plan to assess whether MSHA's
laboratories are providing timely and quality services in
support of MSHA's inspection and investigative
responsibilities.
We will also audit metal/nonmetal mandatory inspections and
its oversight of miner training.
Mr. Chairman, thank you for the opportunity to testify on
our work. I would be pleased to answer any questions that you
or any members of the committee may have.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Elliot P. Lewis
Good morning, Mr. Chairman and members of the committee, I
appreciate the opportunity to discuss the OIG's oversight work relative
to the Mine Safety and Health Administration (MSHA) and specifically
our report on MSHA's Pattern of Violations (POV) Authority. As you
know, the Office of Inspector General (OIG) is an independent entity
within the Department of Labor; therefore, the views expressed in my
testimony are based on the findings and recommendations of my office's
work and not intended to reflect the Department's position.
As we approach the 1-year anniversary of the Upper Big Branch mine
disaster, which took the lives of 29 miners, we are reminded of the
incredible sacrifices that workers make every day and the Department's
responsibility to ensure worker safety and health.
msha oversight work
Over the years, the OIG has devoted significant resources to
providing oversight of MSHA's safety and health responsibilities. For
example, previously issued audits found that:
MSHA's Accountability program, established to ensure that
mine inspection responsibilities are performed effectively, was not
well designed and needed to be strengthened.
MSHA was not fulfilling its statutory inspections mandate
due to resource limitations and a lack of management emphasis on
ensuring that inspections were completed.
MSHA did not have a rigorous, transparent review and
approval process for roof control plans consisting of explicit criteria
and plan evaluation factors, appropriate documentation and active
oversight.
MSHA did not ensure its journeyman inspectors received
required periodic retraining, therefore the inspectors may not have had
the up-to-date knowledge of health and safety standards or mining
technology.
Consistent with the committee's request, I will focus my testimony
on the Pattern of Violations Audit that we conducted after the disaster
at the Upper Big Branch Mine.
pattern of violations audit
Last year's explosion at the Upper Big Branch Mine South in
Montcoal, WV, raised concerns about the mine's safety record and MSHA's
process for identifying mines with a potential pattern of violations.
These concerns were amplified when MSHA reported that a computer error
had omitted Upper Big Branch from the potential POV list. This omission
precluded MSHA from (a) warning the mine operator that the mine
demonstrated a potential pattern of violations and (b) initiating
closer monitoring of the mine's rate of significant and substantial
(S&S) violations.
POV authority is an important tool that lets MSHA take enhanced
enforcement actions when a mine demonstrates recurring safety
violations that could significantly and substantially contribute to the
cause and effect of health and safety issues. Once MSHA notifies a mine
it demonstrates a potential pattern of violations, the mine must take
immediate action to reduce future S&S violations or face tougher
sanctions.
In response to a congressional request, the OIG conducted an audit
to determine how MSHA had used its POV enforcement authority. We were
also asked to review MSHA's policy, criteria, regulations, and
information systems regarding POV sanctions to determine whether they
were reliable and effective in determining and sanctioning habitual
violators.
During the course of this audit, we became aware that MSHA had, at
times, set arbitrary limits on the number of potential POV mines to be
monitored in any single district. The OIG was very concerned about 10
mines that may have been excluded for reasons other than appropriate
consideration of the health and safety conditions at those mines. We
immediately relayed our concerns to MSHA, which subsequently
discontinued that policy and re-examined the safety and health
conditions at those mines.
We completed our audit in September 2010, and concluded that in 32
years, MSHA had never successfully exercised its POV authority. We
determined that successful administration of this authority had been
hampered by a lack of leadership and priority in the Department across
various administrations. This allowed the rulemaking process to stall,
and fall victim to the competing interests of the industry, the
operators, and the unions representing the miners as to how that
authority should be administered. Specifically, our audit found that:
MSHA did not implement regulations for administering its
POV authority until 1990, even though it had the authority to do so
since 1977. The regulations MSHA implemented in 1990 created
limitations on its authority that were not present in the enabling
legislation; specifically, requiring only the use of final citations
and orders in determining a POV, and creating a ``potential'' POV
warning to mine operators and a subsequent period of further evaluation
before exercising the POV authority. This made it difficult for MSHA to
place mines on POV status. According to MSHA officials, in the 17 years
that followed--from 1990 until mid-2007--MSHA district offices across
the Nation operated with limited guidance from the national office and
performed POV analyses based on individual interpretations of
requirements. District offices were responsible for conducting the
required annual POV screening of mines, but never put any mine operator
on POV status. In 2007, MSHA made its first attempt to implement a
standard quantifiable method for screening and monitoring potential POV
mines.
MSHA did not verify the implementation of mine operators'
written POV corrective action plans. POV regulations gave a mine
operator who received a potential POV warning reasonable opportunity to
institute a program to reduce repeated, S&S violations at the mine. The
regulations gave mine operators an opportunity to submit a written
corrective action plan, which would give them additional time before
MSHA made a determination of the mine's POV status. Most mine operators
submitted a written corrective action plan, even though regulations did
not require them. While MSHA District personnel reviewed and discussed
with mine operators the plans they submitted, we found that MSHA did
not approve, disapprove or monitor these plans. In addition, the nature
and basis of MSHA's reviews also varied based on each District
Manager's interpretation of the POV criteria and process. As a result,
MSHA could not demonstrate that these corrective action plans had any
role in subsequent declines in violation rates.
Three logic errors caused unreliable results from MSHA's
POV computer application. MSHA's POV computer application, implemented
in 2007 in connection with the POV model, contained logic errors,
inconsistencies with the stated selection criteria, and an anomaly in
the spreadsheet formulas used to identify mines having more than five
S&S violations of the same standard. These deficiencies occurred
because the computer application was not developed, tested, maintained,
and documented in the disciplined and structured manner normally
associated with major computer applications.
To demonstrate the potential impact of these errors, we ran both
MSHA's uncorrected program and the OIG's corrected program against a
copy of the enforcement data as of May 10, 2010. MSHA's uncorrected
program produced a list of 17 mines for potential POV evaluation. The
OIG's corrected program, run against the exact same data, produced a
list of 21 mines for potential POV evaluation. Our test results showed
that the computer application errors had the potential to incorrectly
include mines that had not met the POV screening criteria, as well as
to exclude mines that had met the POV screening criteria.
Delays in Testing Rock Dust Samples. Our audit also
identified a lack of timeliness in MSHA's testing of rock dust samples
from underground coal mines that could cause critical delays in MSHA
identifying serious safety hazards including the risk of explosions.
Mine inspectors do not currently have a way to measure rock dust
samples on- site during an inspection; therefore, they must collect and
send samples to MSHA's National Air and Dust Laboratory. Lab personnel
test the samples and report the results to the mine inspector. Based on
the reported results, the inspector determines whether a violation had
occurred and a citation should be issued.
According to lab personnel, fluctuating workloads and the
laboratory's recent participation in the National Institute for
Occupational Safety and Health (NIOSH) evaluation of a portable dust
meter, affected how quickly rock dust samples were tested after they
were received. During the spring and summer months, rock dust samples
were normally tested and the results were reported to mine inspectors
in 2-3 days. However, during fall and winter months, inspectors collect
a higher volume of samples because cold air dries out mine surfaces and
increases the risk of explosions. During these periods of increased
risk and workload, it could have taken 2 or 3 weeks to test and report
results.
The handling of some rock dust samples from the Upper Big Branch
mine illustrates the critical importance of completing these tests in a
timely manner. On March 15, 2010, a mine inspector collected 14 rock
dust samples from Upper Big Branch Mine during an inspection. Lab tests
were not completed until 2 days after the April 5, 2010 accident. The
results showed that one of eight samples tested (six samples contained
too much moisture to test) did not meet regulatory standards. Based on
these results, MSHA issued an S&S citation on April 13, 2010.
We found that MSHA had no performance standard for the timeliness
of testing these samples. As a result of our concerns, on July 29,
2010, MSHA directed that rock dust samples were to be tested and the
results reported to mine inspectors within 19 calendar days. However,
the OIG told MSHA management that 19 days did not convey an appropriate
level of urgency for completing tests related to safety hazards within
a mine. MSHA is currently upgrading its National Air and Dust
Laboratory and has indicated that the performance standard will be
revisited when the upgrade is completed in July 2011.
Changing certain criteria significantly affects POV
screening. In an effort to provide information that may be helpful in
MSHA's stated goal to revise the criteria and procedures, we conducted
several ``what if '' analyses aimed at demonstrating the impact of
various changes to the then-existing criteria on the number of mines
(a) identified as having a potential pattern of violations and (b)
meeting MSHA's improvement metrics.
For example, eliminating the POV model's requirements for final
orders resulted in the most significant change. This modification
produced a list of 91 potential POV mines versus a list of 16 when only
final orders were used.
Furthermore, while 94 percent of potential POV mines met MSHA's
improvement metrics within the first inspection period following
receipt of their notification letter, fewer mines would have satisfied
those standards if evaluated over a longer period of time. After two
inspection cycles, 89 percent of mines still satisfied the improvement
metrics. After three inspection periods, the success rate decreased to
85 percent.
After the release of our audit, we were requested by a House of
Representatives committee to perform an expanded analysis of mines that
had received potential POV notifications to determine the extent to
which safety improvements were maintained over a longer period of
time.\1\ Mines receiving a potential POV notification from MSHA reduced
their rate of S&S violations by an average of 63 percent after one
subsequent inspection period; but the average reduction rate declined
to 51 percent after the 8th subsequent inspection period.
---------------------------------------------------------------------------
\1\ OIG Report No. 05-11-002-06-001, ``Pattern of Significant and
Substantial Violation Rate Extended Analysis,'' issued December 15,
2010.
---------------------------------------------------------------------------
On September 30, 2010, MSHA announced more stringent POV
improvement provisions. MSHA currently requires mines to implement
appropriate corrective action programs that achieve a 50 percent
reduction in the rate of S&S violations, or a rate within the top 50
percent for all mines of similar type and classification. Furthermore,
mines that do not choose to implement corrective action programs need
to meet a more stringent improvement metric--a 70 percent or more
reduction in their S&S issuance rates or a rate within the top 35
percent for all mines of similar type and classification.
pov audit recommendations
Our POV audit contained 10 recommendations to MSHA. Specifically,
Mr. Chairman, we recommended that MSHA:
Evaluate the appropriateness of eliminating or modifying
limitations in the current regulations, including the use of only final
orders in determining a pattern of violations and the issuance of a
warning notice prior to exercising POV authority.
Seek stakeholders' input (e.g., miners, miner
representatives, mine operators) in the development of POV screening
criteria, but assure that the process, including rulemaking, is not
stalled or improperly affected because of competing viewpoints.
Assure that POV selection criteria are sufficiently
transparent to allow stakeholders to reasonably determine an individual
mine's status at any point in time.
Assure that POV decisions are based solely on the health
and safety conditions at each mine.
Implement a standard process for documenting all factors--
both quantitative and non-quantitative--used to make POV decisions.
Establish guidance on the preparation, review, and
monitoring of mine operators' POV corrective action plans.
Eliminate the requirement that mines be in an ``active''
status to be screened for a pattern of violations.
Use system development life cycle techniques (analysis,
design, test, implement, and maintain) to reduce the risk of errors in
any POV-related computer application.
Re-evaluate the performance standard for timely completion
of laboratory tests on rock dust or any other samples that yield
enforcement related data, including addressing workload fluctuations
and resources needs.
Examine its process and metrics for monitoring the
improvement of potential POV mines to increase the likelihood that
improvements are not temporary.
current concerns and planned audit work
The committee also requested that the OIG discuss any serious
pending matters stemming from prior OIG work. We have one pending
matter that would require legislative action. The OIG recommends a
technical review of the existing language under Section 103(k) in the
Mine Act to ensure that MSHA's long-standing and critically important
authority to take whatever actions may be necessary to protect miner
health and safety, including issuing verbal mine closure orders, is
clear and not vulnerable to challenge.
Mr. Chairman, our oversight work in the area of mine safety and
health continues. We currently have one audit in progress to determine
whether MSHA effectively and timely collects final civil penalties from
mine operators. In the near future, we plan to assess whether MSHA's
laboratories are providing timely and quality services in support of
MSHA's inspection and investigative responsibilities. We will also
audit MSHA's oversight of miner training. In addition, we plan to audit
MSHA's Metal/Nonmetal mandatory inspections.
Mr. Chairman, thank you for the opportunity to testify on our work.
I would be pleased to answer any questions that you or any members of
the committee may have.
The Chairman. Thank you very much, Mr. Lewis.
We'll begin now, a series of 5-minute rounds of questions.
Mr. Main, even outside the context of the pattern of
violations process, MSHA can get an injunction to close down
the mine if operation of the mine poses a continuing hazard to
mine operators.
Like the pattern of violations, this authority had never
been used prior to your tenure. At the hearing last year you
heard from us about that.
I want to give credit where credit is due. My understanding
is that since then, MSHA has used that authority to get an
injunction and close down a dangerous mine.
My question is this: Can you tell us about the
circumstances of that injunction--and you mentioned that there
were four things that we need to do, you think, legislatively:
The first one was fix the broken POV system. Why do we need to
fix the pattern of violations process if MSHA has the authority
to close the mine under a different provision?
Mr. Main. I think starting with the first part of that,
yes, MSHA did for the first time use the authority under
Section 108 of the Mine Act to seek an injunction, to force a
mine operator to change the way it was doing business, that we
believed that was placing miners in harm's way. This particular
mine had nearly 2,000 citations over a 2-year period; had been
issued over 80 orders; and when we examined the conditions of
the mine, it was very clear to us that we needed to take
extraordinary action.
In doing so, we found that this is not a simple process. It
does take time. And for those that may think that we have this
magic provision, that we can go in and shut down a mine, it
really doesn't exist. This is, I think, one of the closest
things that anyone's ever used to get to that point.
What we have to do is to take a case and prove it to a
judge that this mine merits the kind of action that we are
requesting, and there's no guarantee about the outcomes of
those.
In this particular case we were lucky to have reached a
settlement with the mine operator, and we did achieve the goal
that we had sought, which is to force the company to put into
place plans and programs, in addition to what regulations the
Mine Act currently had, to improve the working conditions of
those miners.
In retrospect, having tried the law, we think that we need
to look at this and discuss more legislation to try to find
something that works swifter, where action is needed.
The Chairman. Of course, that raised a question in my mind,
I mean, when you--sort of like using the atom bomb. When you
close down a mine you put a lot of miners out of work, too.
And, so if there's things that you can do, step by step, to get
them to fix up their violations so that the mine can continue
to operate, it seems to me that's the best way to proceed.
And, second, you mentioned strengthening the criminal
aspects of the Mine Act. Could that be helpful in making these
mine operators meet safety requirements without going to the
extent of shutting the mine down?
Mr. Main. What we seek to achieve is to have the mine
operating both in compliance with the law and protecting the
miners. And the course that we chose at the Freedom Mine that
we talked about where the injunctive action was sought, was to
force the company to put into place plans and protections that
would take those miners out of harm's way.
The intent was not to close down a mine and eliminate the
jobs. The intent was to fix the problem. And, I think moving
forward, as you see how we're structuring a number of our
enforcement programs, it is designed to accomplish just that.
And, I think that's the best approach that we need to take, is
to be able to take immediate action, though, where action is
necessary immediately.
The Chairman. The last question I have before my time runs
out is, the fourth point you had was--my own language was
protecting whistleblowers.
Now, we heard from Jeffery Harris last year. You mentioned
him in your written testimony also, about his testimony, and
others. It seems to me that as we look at it--at least as I
look at it, whistle-blower protection for miners are outdated,
and they don't offer the same protections as modern whistle-
blower laws like Sarbanes-Oxley, so, shouldn't miners have the
same whistle-blower protection as the stockbrokers? And I hope
that you have some suggestions for us because I do believe that
this is one key area that we have to focus on. That is to
protect people who come forward at risk of losing their jobs,
or being laid off or other disciplinary action, so they are
able to give us the information we need.
So, whatever suggestions you have on that, I'd like to see
them.
Mr. Main. I think there is a lot of discussion in the
legislation that was being crafted last year that had some very
reasonable and logical outcomes to protecting miners who speak
out, but I think that the committees from Congress who
conducted investigations into the tragedy last year--held
hearings, I should say--gained, I think, a wealth of
information about what's going on in some of these mines, and
there is real fear of these miners to speak out.
It was just not in Upper Big Branch. If you look at the
outcomes of some of the impact inspections--I'll give you an
example of one in September, when we went into a mine late in
the evening when nobody thought we would show up. We
commandeered the phones, which is not an easy task to do.
For the inspectors to get on a mine property pass,
everybody has a cell phone, and a CB radio as far as the
trucking folks go, to get on the ground, but they did, and when
they arrived on the ground, on the mining section, they found
that the ventilation control was not in place. And these are
controls that are needed to prevent mine explosions, prevent
black lung disease.
The dust was so thick that the inspector could hardly see
this huge continuous mining machine. You have to ask yourself
some questions.
This was well after Upper Big Branch. This is when we all
understood the consequences of taking actions that have been
identified after Upper Big Branch Mine.
Why were the miners working in such conditions? Why
wouldn't they speak out? What was the mine operator thinking
about? What did he expect the ramifications for a Mine Act to
be, to do that? I have to say that that mine, in September, was
not the only mine where we're finding this kind of conditions;
and that's where we have our greatest worry. What goes on in
those mines when MSHA's not there, can't be there? What is it
that we need to do to provide those miners who work at an
occupation in this country, to have enough faith that they can
speak out and cause these conditions to be corrected?
What can we do to have those mine operators think like a
lot of other mine operators who run mines every day, that
respect the law?
Those are why we think pieces of legislation are needed in
those areas.
The Chairman. Thank you, Mr. Secretary.
Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman.
In my opening remarks, Mr. Main, I mentioned a report that
had been given to Chairman Harkin and the Appropriations
Committee even prior to the Upper Big Branch that brought to
light problems at the agency, and we learned about it through
an article early in March. Chairman Kline, who is our
comparable committee on the other side of the Hill, requested
those reports, and others going back to 2007.
Has that request been complied with?
Mr. Main. I think our folks are in the process of complying
with that. I think one of the central issues is that the audits
are both performance audits and individual accountability
audits that's tied in with that; so there's some privacy issues
that's being addressed in terms of making sure that the
information--we are going to provide the information, yes. Just
making sure we do it in good proper response.
I understood that you had requested that as well. We'll be
more than happy to provide that.
Senator Enzi. I have joined them in the request primarily
because it's so late in coming. I mean, this is a report that
went out a year ago.
And if it went to the Chairman of the Subcommittee on
Appropriations, it seems like you would have already vetted all
the privacy stuff. It seems like it would have been like a 2-
day thing in the mail?
Mr. Main. Yes, we would.
Senator Enzi. One of the reasons I'm frustrated is because
in every department that I'm working with I have made requests,
and other people on the Republican side of the committee have
made requests, and we're not getting information. And we get
kind of frustrated.
Mr. Main. If I may clear up here and provide some
understanding, because the report that was provided to the
Appropriations Committee, it was provided to both the House and
the Senate and both the Chairman and the Ranking Minorities.
That report is out in public.
What is the substance of the request is all the reports
that went into making the report. There are several of those
reports. There is something like 60-plus reports. And that's
what's being evaluated now to make sure that, as we provide the
information to you, that we do it in a proper way.
But it is forthcoming, the actual report itself, that was
sent to both the Senate and the House. It is actually a public
document.
Senator Enzi. OK. Now since last June, the Charleston, WV,
Gazette's report on its efforts to obtain MSHA records
regarding two significant methane outbursts at the Upper Big
Branch Mine in 2003 and 2004, and your agencies preliminarily
indicated that extreme levels of methane buildup were likely
the cause of the Upper Big Branch explosion.
Why have you denied the Freedom of Information requests
regarding documents which highlight what your agency may or may
not have known about the pockets of methane located beneath the
coal scene at the Upper Big Branch?
Mr. Main. Yes, I think, again, to put things in
perspective, I've been doing investigations for longer than I
care to mention--a good 30 years, and I've worked MSHA jointly
in these investigations: The Wilberg tragedy, the Jim Walter's
mine disaster, the Greenwich explosion--a number of those. And,
traditionally, it has been the case of the agency to conduct
investigations, amass all the evidence and information; and
when they conclude their evaluation, they put out a report and
release all the information with that.
And, on the heels of that--this goes back to, I think the
Pyro tragedy in 1989. MSHA, on the tail end of their
investigation issues an internal report. The differences have
been--what we've done this time--which I think we've put out
more information than ever has been, with the exception of the
Sago Mine explosion, which I'm sure you're familiar with, in
2006, and what we try to do is temper the balance of what we
need to assure that stays within the confines of the
investigation until the investigation pool desk has
historically been done, and release whatever information we can
to the public.
The other complication we have is that starting jointly
with our investigation, so did the Department of Justice. First
time in history. Like I say, I've been doing this for decades.
First time in history there's ever been such an involvement by
the Department of Justice on the front end.
And, to assure that we do not do anything to jeopardize
their investigation, it has created some complications in the
way that we proceed with our investigation. And we have assured
the Department of Justice that as we proceed, we're not going
to do anything that would jeopardize the investigation that
they are conducting.
That's the long answer, but it's how investigations have
been traditionally----
Senator Enzi. You realize the longer it takes for these
documents to get out, the more that it looks like MSHA knew
more than they did, and could have done more to prevent what
happened; and that there's some kind of an effort to cover up
with the whole process.
One of the reasons people want to look at these records is,
it's reported that Massey Energy had submitted plans and saw
the de-gasification wells, and maybe they'd been approved and
maybe they hadn't.
But, without these reports regarding the previous methane
outburst, it seems impossible to determine whether or not these
degasification wells could have saved lives.
So, could you provide us with more insight into these
Massey claims?
Mr. Main. We have set June 29 as the day that we plan to
release what we believe is releasable in terms of information
regarding the investigation. We think it will be in a position
of winding up the underground investigation, be out of the
underground shortly. We're wrapping up interviews, and we're
reviewing just hundreds and hundreds of documents.
It is our plan to try to amass that information and put it
out in some context as to what it means; and keeping in mind
whatever we do, we're going to balance that with the Justice
Department to make sure that we don't create a problem there.
I would remind folks, too, that if you look back at some
historical mine disasters--we've got Jim Walter's disaster in
2001--it is, I think, 15 months before the agency ever released
its report and information.
Senator Enzi. You're doing something rather incredible
right now, and that's announcing a specific date for release of
the thing, 3 months in the future.
If you're that specific on it already--I mean, June 29th is
3 months----
Mr. Main. We've talked to our investigative team; we have
had discussions with the other Federal agencies; we've had
discussions with our own folks, and we feel comfortable at this
stage that we're going to be able to produce information that
will be of value by June 29th. And, we're working toward that.
Senator Enzi. Pretty incredible. My time is more than up,
sir.
Mr. Main. All right, thanks.
The Chairman. Senator Manchin.
Statement of Senator Manchin
Senator Manchin. Thank you, Mr. Chairman. Thank you for the
courtesy you've extended to myself and Senator Rockefeller, who
couldn't be here today, and I have some questions later on, on
our second round that I'll ask on his behalf.
We're, as you know, both representing the State of West
Virginia. As the Governor of the State of West Virginia
previously, three of these horrible tragedies happened, which
was Sago in 2006, Aracoma followed 3 weeks later; and then last
year, UBB, as we came up on our 1-year anniversary. Our hearts
are still heavy, and we're very much in contact with the
families, whose lives have been changed forever.
The coal miners in West Virginia--and I'm sure around the
country--and I know that Senator Rand Paul will have the same
feeling that I have--that they're the salt of the earth;
they're hard workers; they're patriotic people; they provide
for their families; they work hard; they don't ask for an awful
lot.
But what they do ask for is safe conditions. And, I've told
every miner, I don't intend, in West Virginia to have one miner
in an unsafe condition; nor should a family expect them not to
return home safely. We've done everything humanly possible, and
we're continuing to.
After Sago and Aracoma, I knew immediately that we had to
have rapid response; we had to have tracking communications; we
had to have shelter and oxygen, because we know at Sago with
those things, we'd have saved 12 miners.
This was a horrific explosion; and back when I was growing
up in Farmington, WV in 1968 was the last time we ever had any
of these safety changes that were made.
With all that being said, as the 1-year anniversary--again
I say, our prayers and thoughts go out. I want to say to you,
Mr. Main, and Mr. Stricklin, your entire group, I worked with
you, sat with you for 5 days and 5 nights. I know the
dedication you've committed. I'm not here to put the blame--and
the sins of the past, and people want to make a political--the
bottom line is, we're going to need to fix things.
The difference is with Sago, we knew we needed a change. We
knew we could, and we changed it in 1 day in West Virginia,
which was unheard of. I brought Democrats and Republicans, and
I said, this is the time to be a West Virginian. Don't worry
about the politics. We've got to fix things and make it safer.
We can't let a miner and the families go through what we've
just seen.
We changed it, and you all took it, and I commend both the
Chairman and the Ranking Minority Member here, Mr. Enzi, for
taking that, running and making those changes.
What we're trying to grapple with now, I think, Mr. Main
and Mr. Lewis, is with your audit and everything. We appreciate
that. We don't know which way to go right now. How do we
enforce it? It's not being enforced. How do we make the agency
enforce it or do its job?
I'll give you an example: We put a hotline in, in West
Virginia. You're talking about whistle-blower and all the
different things. Since May 7, after the explosion in April of
last year, through June--one month, we had 16 calls to that
hotline. I guaranteed every miner. I said, you should be
empowered to make a call and we'll protect you. From July 2010
through the present we've had 70 calls on our line, trying to
make sure--and I'm sure it's led up to them. And, we've
coordinated that with MSHA.
What we're looking for right now is the significant and
substantial violations. The things that causes deaths in mine
explosions are things of this sort: ventilation. If it's not
ventilated properly it will build up with fuel. The fuel's
going to be basically, either methane, which ventilation will
take care of, or coal dust, which rock dusting can take care of
that, if it's done properly to hold that lethal powder down, if
you will.
Those types of violations--I can't see how we would
tolerate at all when we have a pattern of someone that is not
continuing to keep up--why we shouldn't be able to shut them
down.
What we're grappling with here, if you have the power, why
don't you use it? Not you. Why hasn't the agency used it over
the year? If there's a flaw, and allows basically, different
companies to skirt that and play Lucy Goosey, then we've got to
change that. That's what we're looking at right now.
We're waiting for, I think, the direction. I know that
there's--this is going in two directions: Criminal
investigation and both the civil investigations, to see how we
can make it better. I know I've used my time already on this,
but I think what we're saying is--can you tell me in what
districts the coal production has gone down or increased? And,
is it relative to the amount of violations you've seen?
That would probably be my first question, and I'll come
back to my second round.
Basically, the amount of coal being produced--the different
districts, and does the coal production--basically, is it
relative to the amount of violations you see?
So, as we're pushing more coal, we're going for production.
Are you seeing that now, disregard for safety, and just mining?
Have you all evaluated that?
Mr. Main. One of the things right after the Upper Big
Branch Mine that I initiated was the Special Impact Inspection
Program. That helped us identify mines, wherever they were,
that were having health and safety or violation rates that were
on the highest levels in the country.
That was one of the criteria we used to target mine impact
inspection. I can tell you this, even though there's a number
of mines that are targeted in Appalachia, it's just not
Appalachia.
We have mines that are having difficulties figuring out how
to comply with the health and safety standards. They're all
over the country. A large number of those in Appalachia; a
large number of those in District 4, MSHA District 4, 6, 7--in
that region.
Senator Manchin. Mr. Lewis, just very quickly, if I may,
Mr. Chairman.
The Chairman. Go on.
Senator Manchin. What is the one thing, through your audit,
that probably startled or surprised you more than anything?
Mr. Lewis. I think in this most recent audit, where we
looked at the POV process, was what we weren't really looking
for, but ran into with the testing labs and not having the
standard and how long it might take to turn around samples that
would have a more immediate effect on the safety in the mine.
Senator Manchin. You two have been working on that
together?
Mr. Main. Yes, actually, we worked quite well with the
Inspector General's Office. And, I'll tell you something about
the lab. It was put in, in southern West Virginia right after
the 1969 Mine Act, and it's been in there ever since.
One of the things that it brought to our attention was the
need to take a look at all these pieces of infrastructure
that's been in MSHA all these years and not been subject to an
evaluation. And, actually, we're working to look at all of our
labs now.
Senator Manchin. Thank you, Mr. Chairman.
The Chairman. Thank you. I try to keep you to 5-minute
rounds so that everyone gets at least a chance to ask at least
one question or two. But, we can always have a second round.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Mr. Main, thank you for being here today.
In 2006 I went with Senators Rockefeller, Enzi, and Kennedy to
the Sago Mine 2 days after that disaster, and a young lady by
the name of Ms. Emmer gave me this picture which I keep with me
every day since. That's her dad, Junior Emmer, who died in the
Sago Mine disaster a few days after Christmas. And, she told
me, when she gave me the picture, she said, I want you to keep
this with you to remember this is what you're responsible to.
Don't let this happen to any other miner in West Virginia.
Now, I've kept it with me for that reason, because it is
important to understand the importance of the impact of what we
do.
I've got a couple of questions that will sound critical,
but I'll try to be very objective about MSHA and its operation.
First of all, in terms of Upper Big Branch, even though
it's been said in testimony and statements that there were
difficulties in that mine, you never took advantage of the
flagrant violation rule and assessed it against the Upper Big
Branch before the explosion; yet you did it in 125 other
instances, in other mines across the country.
We gave you that authority after the Sago Mine disaster in
the MINER Act. Do you know why it wasn't used in the case of
Upper Big Branch?
Mr. Main. Yes. Actually, we've used it 142 times--the
number of times that the pooling has been assessed. And, that's
something that we're taking a look at, as part of the look back
of the portion of history prior to the Upper Big Branch
tragedy.
We're going to have to sort out what that means. I'll add
in the context, too, of all of this is that one of the problems
that I think exists is one that Congress has helped us out with
and we need more help with our backlog issue in terms of the
way we assess penalties and what happened to them.
When I look at the number of mines that are contesting a
large number of penalties that we're issuing, and I look at
those being stacked up 2, 3, 4 years before they ever get to
the process, I'm worried about the flagrant violations as well,
which we have cited. The first ALG decision we announced this
past week, the violation, I think occurred in December 2006;
but the delay that's in this whole penalty process that is as
much of the problem as the penalties that we are issuing. And,
we have a terrible problem with this backlog of cases. We have
got to get those flushed out so penalties mean something, so,
those who are cited doesn't have the belief that they're going
to get a huge discount as they wait.
And, I just looked at the numbers here recently: 1,369
mines last year contested over half of the violations they were
cited. I mean, it gives you a trend here. Yes, we need to be
using flagrance, I think more than what we had. We're looking
at that, and looking back. But this whole penalty system is--
there's such a logjam here, that I really worry about that.
Senator Isakson. I'm glad you brought that up, because let
me make a point. This is an observation I have from my
experience in mines in Georgia. We don't have deep earth mines
like coal mines. We have a lot of surface mines in Kaolin
minerals and things like that.
We've had some difficulties with inconsistencies of MSHA
inspections in Georgia, and in particular, inspectors. I notice
in the I.G.'s report, there was a comment about arbitrary
limits on the number of pattern of violations fines that were
being levied by MSHA in terms of that.
And, then Senator Harkin referred a minute ago--I was in
the hearing here a year or so ago when MSHA was talking about
having authority to close the mine when they already had the
authority to get an injunction to close the mine and never used
it. And, I think the Chairman mentioned they finally did use
it.
It seems to me like there's an inconsistency of enforcement
in the agency which contributes to the number of complaints you
have or number of contentions you have in terms of the fines
that are levied.
I do understand that there would be mine companies that
would just challenge every one of them, or challenge the
preponderance of them. But, in the case of my experience in
Georgia, when I called it to the agency's attention, they found
out they were inconsistently, in the case of one region,
assessing fines and violations; that there is an inconsistency
in the agency in the assessment of violations that raises the
question, why there would be a challenge by the mines and begs
the question, why would a terrible disaster like Upper Big
Branch, if flagrant violation was never used when it had been
used, as you say, in 142 other cases?
I would just point out that inconsistency of enforcement or
using the tools that you have may be contributing to the
challenge that you have in other mines.
Mr. Main. I think in response to the questions that you
have raised, we have taken--the day that I came here, and this
is something that we had a discussion about in my early days,
about looking at how we improve consistency in the application
of the Mine Act.
I realize that half the inspectors I had the day that I
started the job had about 2 years or less. And, we've had
discussions about that in the past. And there is a need for us
to put into place mechanisms to improve our overall consistency
as we go forward.
One of the things that it answers the audits that was
raised. I mean, we've done audits in the past. We're going to
continue to do audits in targeted areas to try to figure out
where would we have some inconsistencies or need to improve
performance. And, what we do with that information is apply
that, to try to fix those.
We launched a special program for training our supervisors
this past summer. This is a 2-week training program. And one of
the key things that it deals with is all these audits and
internal reviews--all the findings of those, and these
inconsistency issues.
We've also launched late last summer, an effort to revise
our entire mine inspection program to get that information back
in, to trade it back in to our inspectors through the
procedures we use.
I just met, about a week ago, with our CLR--those are the
staff that actually resolve the contested violations within
MSHA--about improvements in performance.
But, I have to say this: That at the very beginning, the
first staff that I looked at was, are we writing paper that was
bad? And the answer to that question in 2009 and 2010 was no.
Less than 1 percent of the paper that we issue as a violation
sticks as a violation. And, what that tells me is that the core
problem here is that we need to get the industry more focused
on finding and fixing the violations within the workplace.
And, if we can accomplish that, what happens is that we
cite less violations, we're citing less orders. Instead of the
company writing checks to lawyers or to the U.S. Treasury,
we're plowing that money right back into the mines. And, the
miners have it best of all, because they have an improved
health and safety program.
What Senator Enzi was talking about, the mining company is
far superior than what we have, as far as the standards under
the Mine Law, that's what we strive to have in the industry.
The different mining companies looking at those mining programs
and making improvements.
But, consistency is something we're working on; and we'll
continue to work on it. I think we're making progress, but I
think at the end of the day, there's an operator responsibility
here we can't lose sight of, to operate the mines, to have a
responsibility to put into place health and safety programs,
inspect, to find and fix the conditions. If they did that, we'd
be finding less.
Senator Isakson. OK. Thank you.
The Chairman. Thank you.
Senator Paul.
Statement of Senator Paul
Senator Paul. Thank you, Mr. Chairman.
Thank you for coming today. I, like Senator Manchin, have
lots of miners in my State, and we are concerned about their
safety; and our hearts do go out to families of those who lost
loved ones at Upper Big Branch.
That being said, every regulation doesn't save lives. And,
there is a point or a balancing act between when a regulation
becomes burdensome enough that our energy production is
stifled. We have to assess the costs of regulation and whether
they save lives, and whether some are simply burdensome on the
production of energy.
One of the rules that I'm concerned with is the Respirable
Dust Rule that's being promulgated. There's evidence that we've
been doing, actually, a pretty good job with reducing black
lung over the years. From the passage of the Mine Act in 1969
the prevalence of black lung has been reduced from 33 percent
to 3 percent. I think we've been doing a good job. And do we
always want to do better? Yes, we'd like to do better. We need
to weigh, basically, whether or not that's going to save lives;
whether it's going to improve health versus whether or not it's
going to raise the cost of business.
MSHA has estimated that it will cost $30 million for the
entire industry. We have industry estimates saying that it
could cost $30 million per mine. There's a bit of a discrepancy
in what the cost will be.
What I'd like to see from you would be the reports, the
health reports talking about whether or not black lung is an
increasing problem, a decreasing problem; whether or not we're
looking at pneumoconiosis versus silicosis.
But, the data behind the promulgation of the rule, I
understand we've asked for them and we haven't gotten those
reports. I'd like to see those health reports and know when we
can be provided the data that went into determining the
Respirable Dust Rule. Can you tell me when we can get that
information?
Mr. Main. I don't know that we have any standing requests
of U.S. reports. I know that MIOSHA has standing requests for
reports that they have issued, and we have been working,
actually, with the mining industry to----
Senator Paul. Can you provide the information to my office
for the health reports and the studies that went into why we
need to change the Respirable Dust Rule?
Mr. Main. I can provide you the reports that we relied on
in our rulemaking. And, just as a follow-up, I think if you
asked any coal miner in Kentucky, West Virginia, The
Appalachia, do you know somebody that died of black lung, the
answer's going to be yes.
Senator Paul. I didn't hear your first part. You said you
can or cannot provide those reports?
Mr. Main. Yes, if you'll give us the request, we'll provide
you the reports.
Senator Paul. This is going into effect May 2, and we'd
really like to see the studies as to how you're determining the
cost and how you're determining whether or not this is a health
problem that needs a change in the Respirable Dust Rule.
Mr. Main. Yes, we will provide you the reports we relied on
in making--and I just want to note that based on MIOSHA's
findings miners are still getting the disease; younger miners
are getting the disease. This is a disease that has plagued the
industry since we've mined coal.
I think that the Chairman's father is a black lung victim
as well.
Senator Paul. It's been greatly on decline over the last 30
years.
Mr. Main. We hope to get rid of this disease. That's our
goal.
Senator Paul. We've been succeeding with the current rule
in greatly declining black lung disease over the last 30 years.
Mr. Main. There has been a decline. There's absolutely no
question about it, but miners are still getting the disease,
but we'll be happy to provide you with the reports that we
relied on.
Senator Paul. Thank you.
The Chairman. Your time is a great example to set.
Senator Blumenthal.
Statement of Senator Blumenthal
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
for having this hearing which focuses on one of the Nation's
major workplace safety tragedies. And, I must say, Connecticut
has no coal mines, but I'm here because the principles and
values and the mistakes made can inform all of us. Every family
has a right to expect a worker who leaves in the morning come
back at the end of the day, and anytime in the workplace that
there's a tragedy of the kind that happened here, it reflects
on our Nation as a whole.
I want to thank you, and the Mine Safety Health
Administration for its self-reflection over the past year to
increase the effectiveness of current safety requirements, and,
Mr. Lewis, the work that you've done in looking into possible
improvements.
I want to say that my colleagues, Senator Manchin and
Senator Rockefeller have been extraordinarily responsible and
responsive to the particular issues raised in this tragedy.
And, I want to ask: After any worker safety tragedy of this
kind, and any mining accident, miners' families continue to
suffer, as they have here--29 families wanting to know what
happened in the Upper Big Branch tragedy.
Has the Mine Safety and Health Administration been keeping
those families informed about the ongoing investigations by
both your department and by other branches of the government,
such as the Department of Justice?
Mr. Main. I can speak to the Mine Safety and Health
Administration. I can tell you that we have had a family
liaison that works with them. We've had, I think, seven family-
briefing meetings on our investigative findings on what was
releasable, what we could share with them since the tragedy.
But, I would also like to share with you: We had 71 other
miners that died last year. We have mines in virtually every
State in the United States, and one of the things that probably
gets lost in the shuffle here is that, if you look at the last
two decades, most of the mining deaths have been at non-coal
mines. I'm talking about metal mines, sand and gravel mines;
and when we've taken a look at the data, we find some of the
largest number of deaths at surface facilities and some of the
smaller facilities that occur.
And, in each of these deaths, we have assigned a family
liaison to work with the families. It is something that we
believe in as an agency; I personally believe in. I work with
the grieving families all my life. But that's something that we
do.
Senator Blumenthal. Do you think that the system of liaison
and information can be improved; and what, specifically would
you do to improve it?
Mr. Main. Yes, I think we can. I grew up as a farm kid;
went to work in the mines, and I believed in the find it and
fix it mentality that has taken me through all my life.
Families pay the biggest price for all of these, whether it's a
single accident that happened in Iowa or the tragedy in West
Virginia. And, whatever we can do to both make their life
easier and provide them what we can to help ease their pain and
to bring closure, we owe it to them.
Yes, we're always looking to see what we can do better. I
will also say this, that Senator Manchin mentioned: We all
spent a lot of time with the families right after the tragedy
occurred during the week-long rescue and recovery operation;
and the pain and grief that you see in the eyes of those
families is something that I think that all of us that make the
decisions ought to see, as Senator Manchin has pointed out,
because you really understand the consequences of failure in
mine safety in this country.
Senator Blumenthal. As I mentioned, we don't have any coal
mines in Connecticut, but we have had similar kinds of
tragedies, and we've seen families experience the same kind of
grief in construction accidents, in an energy plant tragedy
that occurred very recently.
And, I wonder if you feel that the families would be
justified, in this instance, if they were dissatisfied with the
level of information that's been provided.
Mr. Main. You can never provide enough information to the
families; and I'm going to start from that equation. If I was
there as, say the father, the son, the wife, the brother, the
sister of the miner who lost their life, I would be asking
every question of everybody to get an answer.
And, to that extent, I think that's what drives us to try
to figure out ways that we can accomplish that. Our event on
June 29 will, as much as we can along those lines, be able to
answer the questions. They want to know what went wrong; why
did this happen, and we owe them that answer.
Senator Blumenthal. Thank you. My time has expired, but I
may have some more questions if there is follow up.
Thank you.
The Chairman. We'll get a second round here of 5 minutes
each.
I'm glad you brought this up, Secretary Main, about the
number of fatalities. I think we have to be constantly reminded
of what a dangerous occupation this is. From 1990 through 2010,
if I'm not mistaken, that's 20 years, not including black lung
deaths, 838 miners perished in metal and nonmetal mines
compared to 820 miners who died at coal mines. So, 1,638 miners
died in 20 years. That's really kind of shocking when you think
about it.
Now, the injury rate--I don't have the data on that, but I
can get that, but that's also extremely high.
My point is, to back up what you just said, but some people
say, well, there ought to be different rules for different
types of mines. Surface mine's different than deep coal mining;
krona mining is probably different than coal mining. And while
I think it probably does make some sense to have different
rules for different types of mines, there are some rules that,
I think, would cover all mines.
For example, it doesn't really make sense to have one set
of rules for a whistleblower at an underground coal mine and
another for a whistleblower at a silver mine or gold mine or
krona mine.
I just wanted to make that point, that I think there are
some standard rules that can apply to all, but there may be
some in which we would have to look at different rules for
different types of mines.
Mr. Main, I wanted to get to this issue of backlog. Because
of what you're going after to reduce this backlog, are you
saying that somehow that is preventing or slowing down your
ability to conduct the kind of investigations and to issue the
kinds of citations that might be needed on a day-by-day basis
right now because you're working so much on the backlog?
Mr. Main. There is no question that the backlog is taking
up a certain amount of resources, in MSHA, in the Solicitor of
Labor's Office; and there is a belief in my mind that there
is--some operators, I think, take the easy route of, if you
issue me a citation, I'm going to contest it.
If you look at the history, they can expect about 2 years
before it ever gets to resolution.
The Chairman. If it's contested.
Mr. Main. If it's contested. And, I think that does have
some impact on how some of the miners view the penalties. And
if mines that operate a short time decide by the time they ever
get to me, I'm going to be out of here--do I believe there's
mines that operate like that? Yes, I do. Do I believe that some
mines have calculated the cost of fines, the cost of doing
business, by keeping their money in their own pocket for 2, 3,
4 years? Yes, I think there's a lot of things that adversely
affect the overall enforcement system.
I can tell you this: that our backlog dollars that Congress
so gratefully gave us to help fix this, runs out in July.
The Chairman. Did Congress not provide additional funding
to reduce that backlog?
Mr. Main. Congress, yes, through July of this year. And,
the Senate Appropriations, on its bill, had added money to
that. But, as we now stand, funding ends in July.
The Chairman. Do we have information--not in this
committee, but the Appropriations Committee on how much we
would need to continue to reduce that backlog in a timely
manner?
Mr. Main. Yes. I think we have a request in fiscal year
2012 that outlines the moneys needed; and I think the gap money
is somewhere around $3 million to get from July to October 1.
The Chairman. OK. Thank you.
Mr. Main. And I think around $23 million was in the Omnibus
bill, but there's a specific amount in the fiscal year 2012
appropriations.
The Chairman. That joint plan was to reduce it in 3\1/2\
years. If you continue to get the additional funding, is that
still----
Mr. Main. I think as we move forward we look at where
history's at, I will tell you, when we started this discussion,
it was in February of--January, February 2010. The moneys was
appropriated in July, and after Upper Big Branch, as everybody
knows, my agency started to increase the enforcement intensity
in the mining industry.
You had some mine operators that contested the actions that
we have taken. I think we've seen an incline since July 5th as
far as more contested cases. And, I think we've tackled around
1,900 cases as a result of the backlog activity that we've
taken.
The hope is, as we move forward with applying the tools,
that we are having the industry take greater ownership, looking
forward to, hopefully, some legislative opportunities here,
that we think that there's going to be a changed attitude in
the mining industry that has us citing less violations as we go
forward.
But we're not there quite yet.
The Chairman. Thank you, Secretary Main.
Senator Enzi.
Senator Enzi. Thank you again, Mr. Chairman.
I want to congratulate you on completing 100 percent of
MSHA's required inspections in 2010 and noted that that marked
the third year that MSHA has achieved that--2008, 2009, but I
noted in your March 25, 2010 Office of Accountability Report to
Chairman Harkin at the subcommittee that 4 of 19 field offices
audited failed to complete section 103(i) periodic spot
inspections required by statute for mines that liberate high
amounts of methane gas in 2009.
How was MSHA able to achieve 100 percent of mandated
inspections in 2009 if these required spot inspections weren't
done?
Mr. Main. Starting with the spot inspections first, MSHA
does about 6,000 spot inspections of mines based on the 103(i)
spot inspection program, and from what I understand there were
four locations--or four different spot inspections--missed out
of that 4,000.
The other thing that I understand is the cause of the find
and fix actions that we take, that that message was reinforced
throughout the industry, or throughout the agency, and we have
been completing the inspections.
When we claim 100 percent inspection, it's based on a
general inspection of a mine; and that's not to say that
everything--we don't live in a perfect world. We wished that we
did, but with all the pieces that we inspect, to get 100
percent, there's some quality improvements we could always
make.
Senator Enzi. Now, mines with high methane liberation have
a higher explosion risk, and that's why they're targeted for
these 103(i) inspections. Do you think it's more important for
an MSHA inspector to inspect every inch of a three-employee
gravel pit that has had no loss time accidents for a decade and
never had a methane explosion, than to complete spot
inspections for mines with high risk of methane explosions?
Mr. Main. I think you have to put it in context. I've done
mine inspections all my life. I've been in gravel pits; I've
been in coal mines; I've been in silver mines. And, there's two
things that I've learned about this Mine Act--I went to work
before there ever was a Mine Act in 1967. I remember the first
day a Federal inspector ever arrived where I was. It was one of
the best days of my life. If you look at how effective the Mine
Act has been; if you go back to 1978, whenever the metal/
nonmetal--1966 metal/nonmetal Mine Act was joined to the 1969
Mine Act, we had about 200 plus, about 280 deaths that year.
We have been able to achieve such great reductions, and
particularly on the metal/nonmetal side as a result of the
implementation of that act, the 2006 Miner Act, the adding on
of inspectors to the point that the last 2 years a metal/
nonmetal has been two of the most historically low years in the
history of mine safety.
So, pulling inspectors off of those, you risk a reeling
back of the successes that you've made. And, I think that
Congress and this agency, the mining industry, needs to have
the recognition of how all those pieces of legislation,
regulations came together to provide us with the safest 2 years
in the history of mining.
Senator Enzi. Now, was UBB scheduled for 103(i) spot
inspection; and were those completed?
Mr. Main. They were scheduled for those. As far as, were
they all completed, that's something that will be assessed.
Actually, there was no audits that involved Upper Big Branch in
the ones that we have been talking about here this morning.
I want to put those audits in perspective: MSHA's been
auditing agency performance since probably its creation in May
1969, it is a function that the agency has to do--to go out and
look at how its performance is to carry out the Mine Act.
If we don't find problems, somebody's going to be worried
that we're not looking in the right places, so we try to target
to find the right areas where we had concern.
And, it's the same thing with the IG audits that are done.
Those are targeted in particular areas to help us be a better
agency.
We're hopeful that all the audits that we've been talking
about were helpful to make improvements to the agency going
forward.
Senator Enzi. How many times has MSHA inspected large
underground mines and issued zero significant and substantial
citations; or is it even possible?
Mr. Main. Yes. We have some mines in this country that are
very large. I know one in northern West Virginia, up in the
Senator's area, the McElroy Mine. I think it's probably the
largest underground mine that we have in this country, two
sections--or two long mines; employs close to 1,000 miners; and
they have a vast area. And, we take that into consideration
when we look at how mines are.
We have some mines that are very small, and we take the
smallest gravel pit. But, yes, there are mines that have
inspections that do not receive S&S violations, both from the
coal side and on the non-coal side.
One of the other things, too is that we look at what we do
and how we have applied the law. We issue the 14 potential
patterns of violation notices to those non-coal mines; one of
them was a surface cement plant in the southeast. And, this was
something that may surprise folks, but it showed up on the list
as having problems that we needed to take exceptional action
in. That mine has successfully lowered its S&S rate; is now off
the potential pattern of violation and sent us a letter
basically thanking us for showing them how to have a better
safety program; and they fully intend to do a better job from
here out.
My safety covers more than coal; and we try to use our
tools to target the areas where the problems are where we need
them the most.
Senator Enzi. I have a number of other questions, but I'll
submit them since my time has expired.
The Chairman. Thanks, Senator Enzi.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
As I mentioned, just for the record, we have no underground
coal mines in Connecticut, but we do find that whistleblowers
are frequently a source of extraordinarily important
information in preventing, as well as investigating and
prosecuting these kinds of tragedies.
I know that at the field hearing in Beckley, one of the
problems raised by the miners was their fear of retaliation or
retribution.
I wonder what the Mine Safety and Health Administration has
done to empower miners to come forward and report unsafe
conditions before they cause this kind of tragedy?
Mr. Main. Through how we train our inspectors to be out
talking to miners to let them know their rights; we have our
training department--we, being MSHA--do updated information to
get out to the miners; we try to send messages, is what I say,
publically, as the head of MSHA, what I expect, and what I
expected is that mine operators listen to miners, and that
miners have the right to speak out; and the way that we respond
to discrimination complaints, where miners do speak out.
We are going after the largest number of temporary
restraining orders to get--or not a TR--it's an order that puts
a miner back to work while their case is being processed; and
we let the mining industry know about our actions to do that.
But, there's more that we need to do to make the miners feel
comfortable with all that we do, to give them more legal
powers.
Senator Blumenthal. And, what would you do? And, I guess
that's a question also for Mr. Lewis, because your report does
not specifically make recommendations with respect to
whistleblower protection, but I do feel it is important for
both of you to focus on.
If I could ask that question of you, Mr. Main, and then ask
Mr. Lewis to answer it as well.
Mr. Main. I would say simply that there is a lot of
discussion about this and the development of legislation last
year for a new mining act. There is a lot of good provisions in
that, we should take a look at, that aims at providing miners
with a greater voice, a greater amount of protection, and more
penalties for those that take action against the miners; and we
support moving forward with those.
Senator Blumenthal. Mr. Lewis.
Mr. Lewis. That's something that we have not specifically
looked at, at this point in MSHA, but we could certainly do so.
We have looked at their hotline process for receiving
complaints and made recommendations over that in the past and
how it's operated.
Senator Blumenthal. Let me make a suggestion, Mr. Lewis,
that you do look at it very closely, because in forestalling or
improving the kinds of conditions that the miners know best--
they're on the scene; they're in the mines, just as workers at
a construction site or at an energy plant can see and feel
danger before it occurs, they need to be empowered, and
absolutely protected against retaliation, not just that
objectively it won't occur, but, in fact, in their perception
that there is no intimidation.
I know that you share my feeling that they should be
protected, and I know you've made that clear, Mr. Main, in what
you've said.
To the extent both of you can give us some more specific
recommendations in that regard, I would certainly appreciate
it.
Let me ask just one last question, if I may, Mr. Chairman,
in the minute I have.
Mr. Lewis, do you feel that there has been adequate follow
up on the recommendations you've made?
Mr. Lewis. On all of the recommendations that the agency
has certainly been responsive and receptive. We know there's
action on all of them. There are some things remaining to be
done but I know there is work underway on every recommendation
we've made. We've had a good working relationship with MSHA
over the last 5 years.
Senator Blumenthal. And, if you could pick an area where
there has been either inadequate response, or delay, what would
it be?
Mr. Lewis. I wouldn't characterize it as inadequate
response or delay. There are some things that are not going to
be done overnight, as I mentioned earlier. One of our
significant concerns was the testing labs, and we know that
there is a lot that they are looking at there, but we are
anxious for them to re-evaluate that standard.
But, we know they're going to have to do some things, and
to get themselves in a position to be able to do that more
timely.
Senator Blumenthal. Mr. Main.
Mr. Main. Yes. If I could make a follow up on it. The lab
is one thing that, like I said, that was put in there in about
1970. It hasn't changed much since 1970. We agree it needed
overhaul. We've actually made certain changes, and we have some
requests in fiscal year 2012 to help fix that.
A couple other issues: One of them is as to the
recommendation that was made by the Inspector General that we
have a change in legislation, how we issue 103(k) orders
because of a language issue that was brought up after the
Crandall Canyon disaster, finding that MSHA does not have the
legal authority to issue a verbal 103(k) over the phone. That's
a real problem. And, that's a recommendation that's in the
legislative package.
And, there's recommendations made, as well, that we
eliminate the final orders in the pattern of violations
process, and our proposed rule covers that.
I think that yes, we have agreed with all the
recommendations since I've been here that we have received, and
we're looking, honestly, to fix those, and haven't been as yet,
completed.
Senator Blumenthal. Thank you very much, and thank you for
your constructive work on this issue.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal.
Senator Manchin.
Senator Manchin. Thank you, Mr. Chairman.
In the State of West Virginia we have our own inspection,
as you know, our own health safety and training office. And,
what I hear a lot from both the miners themselves and operators
is that there are two inspections going on; and one might
contradict the other; and they get very confused. I've even had
miners tell me that. They've said, ``We're told to do one thing
one way and then either the State or the Federal follows up and
they're looking for something different.'' And, it's so
confusing that it creates maybe an unsafe condition when we're
both intending to create a safer condition.
What I would ask--I found a lack of sharing information. I
know that, from the Federal and our State in West Virginia--and
I'm sure other States might have the same concern--they are not
sharing what they should be. We don't know if they are
coordinating inspections. If we're required to do four
inspections a year, and the feds are required; so you have the
State doing four and the feds doing four, are they coordinating
those so they will be at intervals and sharing that information
so it would be much more constructive than detrimental to the
operation, and, to really, the safety?
Mr. Main. I think the answer to that--this is going to be
an answer broader than the State of West Virginia----
Senator Manchin. I know. I know.
Mr. Main. We have about 20 coal States.
Senator Manchin. Do most States have their own--I know Utah
did not. Does Utah now have their own mine department?
Mr. Main. Yes. There is probably about six or seven States
that do, but I have been working to organize all the State
agencies. As a matter of fact we're set to meet in the month of
May to seal a memorandum of understanding. It is an
organization that represents State agencies, and we pull in all
the State mine safety agencies.
In that meeting we're pulling together all of our district
managers on the coal sites throughout the United States after
they will be hooked up with all the State agency heads. This is
something we've already accomplished one time. And it is to do
exactly what you're talking about. We want to bring to bear
better coordination between State and Federal agencies and the
work that they do and the work that we do, and we're hopeful,
to, as a result of all of that, increase that communication
coordination.
Senator Manchin. Let me just give you this, what I'm
finding out. There is such little resource out there with the
people that have the expertise, and we're both in the same pool
of workforce, trying to--who's going to pay more to get that
inspector to work for Federal or for State.
Do you believe that it's time to have truly one agency
doing training and one agency doing inspections? Everyone's
trying to do everything and I'm sometimes finding out we're not
doing either one as well as we could or should.
Mr. Main. I have been a proponent of the continuation of
State agencies. I think they serve as an enforcement agency. I
think they serve a valuable purpose in protecting the lives of
miners. I think that we can improve over all, by having greater
coordination between the State agencies and MSHA and accomplish
a lot better goal of consistency of how we manage our resources
at the mine site.
Senator Manchin. Who has primacy? If I have State law, and
I've got our inspectors--and we're going out there because we
live there. That's us. We're right there every day. Do we have
primacy over that, or basically does the Federal have primacy?
Mr. Main. If there is a conflict there is a Federal primacy
that is applied, but generally the way that a lot of the State
laws are constructed, they are constructed in the Mine Act,
which was after a lot of the State agencies took place----
Senator Manchin. Has MSHA ever considered basically taking
the lead role on, basically, teaching the safety end of it, and
maybe the States taking a lead on the inspection end of it to
make sure that we're enforcing it?
Mr. Main. Let me just say this as a Federal employee who
works for the Federal Government, I do not see it, probably as
in my best interest to step into the State authority issues and
let the States make their own determinations. Only thing I can
say is that throughout my working career I have seen the value
of both agencies, in these----
Senator Manchin. The only thing I would ask for, if you
would, give me a breakdown of how you're coordinating, because
I know, before, we weren't sharing. We didn't know what to look
for. The people would come to me as Governor, and they'd say,
we're going in and we're looking at this and we're seeing it.
You all might have gone in a week earlier, or maybe a day
earlier and looked at something different.
We could help each other a lot more if we were sharing
that, and if you had a serious violation, whether it be
ventilation or rock dust or something, and we're going to come
in and in intervals quicker than your interval; we could be
looking for what you've been already identifying.
That's what I really saw, Joe, then we get the best bang
for our buck.
Mr. Main. I truly agree with you, and that's the aim of
working with this State organization where we can do it, not
just in West Virginia, but throughout the country to help
improve that--I agree with that.
Senator Manchin. Thank you Mr. Chairman.
The Chairman. I think that concludes our testimony this
morning. I thank you both very, very much, and thank you, Mr.
Main, for your great leadership down there. I can assure you
that we're going to have to fight very hard on the
Appropriations end to make sure that we can continue to get the
extra additional money to reduce the backlog. I'm afraid that
if that's not done, one or the other is going to suffer--either
we won't reduce the backlog in the 3 years that we've set or we
won't be able to do the onsite inspections and things that we
need right now.
But I think what Senator Manchin just mentioned is
something I think we're going to have to look at. I can discuss
that with Senator Enzi as we develop this legislation--the
coordination between State and Federal, and who's responsible
for what. I don't know a lot about that, and I've got to find
out about that, and I'm just wondering if there is something
that needs to be put in legislation to better mediate.
Senator Manchin. Mr. Chairman, what has happened over the--
and I think that Senator Enzi will say the same, because coming
from a large mining State, is the confusion. Everybody--let's
say that the miners themselves, and the operator really want to
do it, but they get confused, or they have been confused in
past, of, OK, who has the primacy, and if we're doing this by
what the State's telling us. And if the coordination. And you
might have it required by law. I think we're four inspections a
year.
Mr. Main, what's your requirement? How many do you require?
Mr. Main. Four.
Senator Manchin. Four.
Mr. Main. And, I don't round.
Senator Manchin. That's a total of eight. Let's say if we
both come the same month, four times, that means 8 months might
get done with nothing.
If we knew we were coordinating, and we were rotating this,
we could almost have a much more--and sharing the information
on what to look for. That's what I saw. That's way before you
all come in and way before all this happened, I'd been getting
those complaints clear back in 2005 and 2006.
The Chairman. Mr. Main, do you have one thing to----
Mr. Main. I would say this: I think that when we're talking
about the Appalachian coal fields and realize what we have, I
think we have to be very careful about any illumination of
enforcement activities.
I totally agree with the Senators, that we do need to do
better coordination.
Senator Manchin. Let me make it very clear, I do not, under
any circumstances, think that we should eliminate it. We'll
make sure it's effective and efficient; and if we're both doing
it, let's do it so we can improve it.
Mr. Main. And we agree with that, and that's the reason
I've been working to get the State agencies together. And it's
not only on underground coal mines, it's like we inspect
impoundments all over the country. We have an issue with our
surface impoundments, and how best we can do that.
We have State agencies that do that. We have some
obligations that--there are a number of things that would be
helpful for us to coordinate.
The Chairman. Thank you all very much.
The record will remain open for 10 days for further
statements, questions submitted by Senators; and with that,
the----
Senator Manchin. Mr. Chairman, if I may say, on behalf of
myself and Senator Rockefeller, we want to thank you for the
courtesy you've extended to us.
The Chairman. Absolutely.
Senator Manchin. We're not a member of your committee.
You've allowed us to come in and sit and participate.
The Chairman. Senator Enzi.
Senator Manchin. Senator Enzi, thank you so much, my
friend. I appreciate it.
Senator Enzi. My pleasure.
Senator Manchin. Thank you.
The Chairman. Thank you all very much. The committee will
stand adjourned.
[Whereupon, at 11:38 a.m., the hearing was adjourned.]