[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

LEARNING FROM THE
UPPER BIG BRANCH TRAGEDY

=======================================================================

HEARING

before the

COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

HEARING HELD IN WASHINGTON, DC, MARCH 27, 2012

__________

Serial No. 112-56

__________

Printed for the use of the Committee on Education and the Workforce

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COMMITTEE ON EDUCATION AND THE WORKFORCE

JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Robert E. Andrews, New Jersey
Todd Russell Platts, Pennsylvania Robert C. ``Bobby'' Scott,
Joe Wilson, South Carolina Virginia
Virginia Foxx, North Carolina Lynn C. Woolsey, California
Bob Goodlatte, Virginia Ruben Hinojosa, Texas
Duncan Hunter, California Carolyn McCarthy, New York
David P. Roe, Tennessee John F. Tierney, Massachusetts
Glenn Thompson, Pennsylvania Dennis J. Kucinich, Ohio
Tim Walberg, Michigan Rush D. Holt, New Jersey
Scott DesJarlais, Tennessee Susan A. Davis, California
Richard L. Hanna, New York Raul M. Grijalva, Arizona
Todd Rokita, Indiana Timothy H. Bishop, New York
Larry Bucshon, Indiana David Loebsack, Iowa
Trey Gowdy, South Carolina Mazie K. Hirono, Hawaii
Lou Barletta, Pennsylvania Jason Altmire, Pennsylvania
Kristi L. Noem, South Dakota Marcia L. Fudge, Ohio
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director

C O N T E N T S

----------
Page

Hearing held on March 27, 2012................................... 1

Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 3
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia, prepared statement of.......... 77
Woolsey, Hon. Lynn, a Representative in Congress from the
State of California........................................ 4
Prepared statement of.................................... 6

Statement of Witnesses:
Kohler, Jeffery, Associate Director for Mining; Director of
the Office of Mine Safety and Health Research (OMSHR),
National Institute for Occupational Safety and Health
(NIOSH).................................................... 95
Prepared statement of.................................... 97
Main, Hon. Joseph A., Assistant Secretary of Labor for Mine
Safety and Health.......................................... 8
Prepared statement of.................................... 10
Roberts, Cecil E., president, United Mine Workers of America. 89
Prepared statement of.................................... 91
Shapiro, Howard L., Counsel to the Inspector General, Office
of Inspector General, U.S. Department of Labor............. 85
Prepared statement of.................................... 86

Additional Submissions:
Andrews, Hon. Robert E., a Representative in Congress from
the State of New Jersey, chart: ``MSHA Coal Inspector
Staffing Levels''.......................................... 112
Assistant Secretary Main, response to questions submitted for
the record................................................. 124
Mr. Miller:
Table, ``All Citations and Orders Issued by MSHA for
Advance Notice''....................................... 113
Table, ``MSHA Monthly Impact Inspection List''........... 114
Letter, dated March 29, 2012, from Mindi Stewart......... 115
MSHA news release, February 29, 2012, ``MSHA Announces
Results of January Impact Inspections''................ 116
U.S. Department of Labor News Release, March 28, 2012,
``MSHA: Advance Notification of Federal Mine Inspectors
Still a Serious Problem''.............................. 117
Questions submitted for the record....................... 119
Noem, Hon. Kristi L., a Representative in Congress from the
State of South Dakota, question submitted for the record... 124
Mr. Rahall, prepared statement of Gary and Patty Quarles,
Naoma, WV.................................................. 108
Mr. Roberts, response to questions submitted for the record.. 120
Roe, Hon. David P., a Representative in Congress from the
State of Tennessee, hearing transcript excerpt, U.S.
Senate, dated May 20, 2010................................. 59
Ms. Woolsey, federal court transcript, dated March 14, 2011.. 30

LEARNING FROM THE
UPPER BIG BRANCH TRAGEDY

----------

Tuesday, March 27, 2012

U.S. House of Representatives

Committee on Education and the Workforce

Washington, DC

----------

The committee met, pursuant to call, at 10:01 a.m., in room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, Petri, Goodlatte, Roe,
Walberg, DesJarlais, Rokita, Bucshon, Gowdy, Roby, Kelly,
Miller, Kildee, Andrews, Woolsey, Tierney, Holt, Altmire, and
Fudge.
Also present: Representatives Capito and Rahall.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Barrett Karr, Staff Director; Ryan Kearney, Legislative
Assistant; Donald McIntosh, Professional Staff Member; Brian
Newell, Deputy Communications Director; Krisann Pearce, General
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce
Policy; Linda Stevens, Chief Clerk/Assistant to the General
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior
Policy Advisor; Joseph Wheeler, Professional Staff Member; Kate
Ahlgren, Minority Investigative Counsel; Aaron Albright,
Minority Communications Director for Labor; Tylease Alli,
Minority Clerk; Kelly Broughan, Minority Staff Assistant;
Daniel Brown, Minority Policy Associate; Jody Calemine,
Minority Staff Director; John D'Elia, Minority Staff Assistant;
Waverly Gordon, Minority Fellow, Labor; Richard Miller,
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority
General Counsel; and Michele Varnhagen, Minority Chief Policy
Advisor/Labor Policy Director.
Chairman Kline. A quorum being present, the committee will
come to order.
Good morning, Assistant Secretary Main, thank you for being
with us today.
On April 5th, 2010, the people of Montcoal, West Virginia
suffered a tragic loss. Around 3 o'clock in the afternoon,
workers completing their shift at the Upper Big Branch Mine
felt a strong blast of wind hit their backs.
It was a chilly morning that a violent explosion was
tearing through the mine, one that would kill 29 miners and
severely injure two more.
As a nation, we continue to mourn the men and women who
died and keep their families in our prayers.
Since that fateful day, the people of West Virginia have
been searching for answers.
How could such a catastrophic event take place? Could it
have been prevented?
What steps need to be taken to help ensure this kind of
tragedy never happens again?
As part of the federal response to the explosion, three
teams were assembled to examine the events of Upper Big Branch:
an MSHA investigation team to determine the cause of the
explosion, an internal review team to examine MSHA's actions,
and a team from the National Institute of Occupational Safety
and Heath to conduct an independent assessment of MSHA's
internal review.
After examining more than 1,000 pieces of evidence, MSHA
released its accident report last December. The report
documents three events that facilitated the worst mining
disaster in 40 years.
First, worn drill bits and faulty water control in the
mining machine created a spark or ignition. Then a buildup of
methane gas combined with the ignition triggered an explosion.
Finally, a massive accumulation of coal dust fueled a fire that
quickly spread throughout the mine.
While this explains the physical cause of the disaster, its
real genesis lies in Massey's corporate culture that valued
profit over safety. By engaging in the reckless disregard of
important safety protections, Massey Energy bears the
responsibility for the deaths of these miners.
The investigation revealed numerous safety violations
including keeping two sets of books and routinely providing
advance notice to miners that inspectors were on site, all part
of a campaign to conceal the true working conditions
underground; disabling multi-gas detectors that could have
alerted miners to the accumulation of methane gas; and failing
to comply with rock dusting standards that would have contained
the fire before it consumed the mine.
The list of violation goes on and on. Safety was clearly
not a priority for Massey. And 29 miners and their families
paid the price.
Federal prosecutors are to be commended for their efforts
to bring justice to those who engaged in criminal activity.
Mine operators have a legal and moral responsibility to protect
their workers.
Cecil Roberts, president of the United Mine Workers
Association, whom we will hear from shortly, once noted that 95
percent of mine operators are trying to do the right thing. Yet
bad actors continue to jeopardize miners' safety.
That is why we have the Mine Act and the Mine Safety and
Health Administration. When workers are needlessly put in
harm's way, federal enforcement must require correction action
and hold the mine operator accountable.
As we have learned in startling detail from internal review
and independent assessment, regrettably this did not happen in
Upper Big Branch. Instead, miners were forced to confront a
failed combination of reckless safety practices and enforcement
failures.
On numerous occasions, inspectors identified safety
violations, yet didn't require abatement of the hazard. Even
more shocking are hazards that simply went unnoticed
altogether.
For example, in December 2009, MSHA approved a new plan to
secure the roof of the mine. However, four subsequent
inspections failed to cite Massey for violating the approved
plan.
This proved to be a critical enforcement error once a roof
collapse altered the mine's airflow and allowed for the buildup
of methane gas.
Furthermore, it is difficult, almost impossible, to imagine
enforcement personnel missing the inherent dangers of coal dust
accumulating throughout the mine. Again, this enforcement error
neglected a crucial safety concern that would later enhance the
magnitude of this disaster.
We have also learned over the last 2 years that other
enforcement tools were either poorly used or never implemented.
Bipartisan reforms enacted in 2006 created a new category of
flagrant violations, yet they were never imposed against
Massey.
Computer glitches allowed Massey to avoid tougher
enforcement measures. And technical support audits, including
one that outlined concerns of methane in the mine, were never
transmitted to the mine operator.
Sadly, the list of enforcement lapses could go on as well.
NIOSH states in its assessment that proper enforcement, quote--
``would have lessened the chances of, and possibly could have
prevented, the UBB explosion.''
There may be a number of reasons for these errors. However,
no excuse can comfort those who lost a loved one.
Some enforcement failures have plagued the agency for
years, and deadly mistakes are always followed with a pledge to
do better. Yet Upper Big Branch still happened. Tragedy
strikes, promises are made, new laws are passed, and a broken
enforcement regime goes on.
Administrator Main, I hope you convince this committee, and
the nation's miners, that this time it will be different, that
this time, we will learn from past mistakes and keep our
promise to do better.
I look forward to discussing these matters further with our
witnesses.
I now recognize my distinguished colleague, Ms. Woolsey,
for her opening remarks.
[The statement of Chairman Kline follows:]

Prepared Statement of Hon. John Kline, Chairman,
Committee on Education and the Workforce

Good morning, Assistant Secretary Main. Thank you for being with us
today.
On April 5, 2010, the people of Montcoal, West Virginia suffered a
tragic loss. Around three o'clock in the afternoon, workers completing
their shift at the Upper Big Branch mine felt a strong blast of wind
hit their backs. It was a chilling warning that a violent explosion was
tearing through the mine, one that would kill 29 miners and severely
injure two more. As a nation, we continue to mourn the men who died and
keep their families in our thoughts and prayers.
Since that fateful day, the people of West Virginia have been
searching for answers. How could such a catastrophic event take place?
Could it have been prevented? What steps need to be taken to help
ensure this kind of tragedy never happens again?
As part of the federal response to the explosion, three teams were
assembled to examine the events of Upper Big Branch: an MSHA
investigation team to determine the cause of the explosion, an internal
review team to examine MSHA's actions, and a team from the National
Institute of Occupational Safety and Health to conduct an independent
assessment of MSHA's internal review.
After examining more than a thousand pieces of evidence, MSHA
released its accident report last December. The report documents three
events that facilitated the worst mining disaster in 40 years. First,
worn drill bits and faulty water control on the mining machine created
a spark or ignition. Then, a build-up of methane gas combined with the
ignition triggered an explosion. Finally, a massive accumulation of
coal dust fueled a fire that quickly spread throughout the mine.
While this explains the physical cause of the disaster, its real
genesis lies in Massey's corporate culture that valued profit over
safety. By engaging in the reckless disregard of important safety
protections, Massey Energy bears the responsibility for the deaths of
these miners. The investigation revealed numerous safety violations,
including:
Keeping two sets of books and routinely providing advance
notice to miners that inspectors were onsite, all part of a campaign to
conceal the true working conditions underground;
Disabling multi-gas detectors that could have alerted
miners to the accumulation of methane gas; and
Failing to comply with rock dusting standards that would
have contained the fire before it consumed the mine.
The list of violations goes on and on. Safety was clearly not a
priority for Massey, and 29 miners and their families paid the price.
Federal prosecutors are to be commended for their efforts to bring
justice to those who engaged in criminal activity.
Mine operators have a legal and moral responsibility to protect
their workers. Cecil Roberts, president of the United Mine Workers
Association--whom we will hear from shortly--once noted that 95 percent
of mine operators are trying to do the right thing. Yet bad actors
continue to jeopardize miners' safety.
That is why we have the Mine Act and the Mine Safety and Health
Administration. When workers are needlessly put in harm's way, federal
enforcement must require corrective action and hold the mine operator
accountable. As we've learned in startling detail from internal review
and independent assessment, regrettably this did not happen at Upper
Big Branch. Instead, miners were forced to confront a fatal combination
of reckless safety practices and enforcement failures.
On numerous occasions, inspectors identified safety violations yet
didn't require abatement of the hazards. Even more shocking are hazards
that simply went unnoticed altogether. For example, in December 2009,
MSHA approved a new plan to secure the roof of the mine. However, four
subsequent inspections failed to cite Massey for violating the approved
plan. This proved to be a critical enforcement error once a roof
collapse altered the mine's airflow and allowed for the buildup of
methane gas.
Furthermore, it is difficult--almost impossible--to imagine
enforcement personnel missing the inherent dangers of coal dust
accumulating throughout the mine. Again, this enforcement error
neglected a crucial safety concern that would later enhance the
magnitude of this disaster.
We have also learned over the last two years that other
enforcements tools were either poorly used or never implemented.
Bipartisan reforms enacted in 2006 created a new category of flagrant
violations, yet they were never imposed against Massey. Computer
glitches allowed Massey to avoid tougher enforcement measures. And
technical support audits, including one that outlined concerns with
methane in the mine, were never transmitted to the mine operator.
Sadly, the list of enforcement lapses could go on as well. NIOSH
states in its assessment that proper enforcement ``would have lessened
the chances of--and possibly could have prevented--the UBB explosion.''
There may be a number of reasons for these errors; however, no
excuse can comfort those who lost a loved one. Some enforcement
failures have plagued the agency for years, and deadly mistakes are
always followed with a pledge to do better. Yet Upper Big Branch still
happened. Tragedy strikes, promises are made, new laws are passed, and
a broken enforcement regime goes on.
Secretary Main, I hope you convince this committee and the nation's
miners that this time it will be different; that this time we will
learn from past mistakes and keep our promise to do better.
I will now yield to Mr. Miller, the committee's senior Democrat,
for his opening remarks.
______

Ms. Woolsey. Thank you, Mr. Chairman.
Certainly, as we examine the lessons learned from the Upper
Big Branch mine disaster, we can never lose sight that there
are 29 families who lost their fathers, their brothers, their
husbands, and their best friends.
Almost 2 years ago, this committee travelled to Beckley,
West Virginia where we heard chilling testimony from the
families and miners about the unbelievable conditions in that
mine.
Most of which you listed just in your opening testimony,
Mr. Chairman. So I won't repeat it.
But Leo Long, a lifelong miner and grandfatherof one of the
29 miners who lost his life, testified that day. Mr. Long said,
``I am asking for you all to please do something for the rest
of the coal miners that are in the mines. I pray for it every
night, every day. If you don't do something, something like
this is going to happen again.''
Mr. Long, we hear your plea.
Since that hearing, there have been four investigative
reports on the tragedy. All found that Massey Energy caused the
explosion by failing to comply with long established safety
standards in mine workplaces.
Massey failed to prevent this tragedy because it didn't
maintain the water sprays to quench the ignition, or shore up
the mine roof to keep the mine ventilated. And it failed to
keep the mine rock-dusted to prevent a coal dust explosion.
On top of Massey's failure to follow basic safety
protections, it also engaged in a pattern of obstruction.
Massey routinely provided advance notice of inspections which
gave foremen time to correct hazardous conditions or stop
production before MSHA inspectors arrived underground.
Massey kept two sets of mine examination books. And Massey
engaged in a pattern of intimidation by threatening miners'
jobs if they tried to stop production to correct unsafe
conditions.
The Governor's Independent Panel concluded that these
failures were the result of a culture where--and he said it--
``wrong doing became acceptable, where deviation became the
norm.''
Under the Mine Act, the mine operator is responsible for
the health and safety of its miners. And if that operator
fails, it is up to the safety agency to bend the operator back
into line.
But MSHA's effort was compromised at UBB. There were poor
inspection practices and a failure to identify violations.
There was a failure to put this mine on Pattern of
Violations or apply maximum penalties. There was a failure to
investigate Massey managers who may have engaged in knowing and
willful violations. And mine plans were approved without
resolving previous safety concerns.
Today, Mr. Chairman, we must examine why this happened. We
have to know what broke.
We know that budget cuts and retirements incapacitated
MSHA's effectiveness, particularly in the early 2000s. Then
after three mine tragedies in 2006, Congress finally reversed
course and provided resources to put more inspectors back into
the mine.
But the new inspectors didn't have the needed experience.
And there were not enough technical specialists.
Violations went undetected including critical violations
highlighted in the latest NIOSH report.
Only a few weeks before the UBB explosion in fact, MSHA
inspectors were underground near the source of the explosion.
But the lead inspector had only 13 months experience, and
obviously missed a number of violations that may have prevented
this accident in the first place.
While MSHA definitely fell short, it was not for lack of
trying. MSHA issued $1.3 million in penalties prior to the
accident. The agency shut down parts of the mine 52 times in
the previous year.
But these citations didn't change Massey's conduct. In
fact, rather than fixing problems, MSHA's penalties were met
with litigation, not compliance.
At UBB, Massey contested 92 percent of all penalties prior
to the explosion. What is clear is that MSHA was no match for
Massey or any other mining operation where corporate greed
comes before the health and safety of the workers.
Today, we recognize that the entire system failed the
miners at Upper Big Branch. Past Congresses shouldn't have
slashed funding for mine inspectors.MSHA needed to do a better
job with the tools it had. And Massey exploited MSHA's
weaknesses and those in the law and hurt their workers.
The law should have been much stronger because that is what
it takes when an operator has little or no regard for their
workers.
We are prepared to work with our colleagues to enact
meaningful reform so that we can honor Leo Long's plea and the
lives of our country's miners. Because, Mr. Chairman, the blood
spilled by these miners must not be in vain and it must not be
forgotten. And we must protect all miners from the errors that
led to the UBB disaster.
Mr. Chairman in closing, I want to welcome our witnesses
that will be here today and Joe Main, as well as
Representatives Rahall and Capito, who have a lot invested in
our getting this right.
I yield back.
[The statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn Woolsey, a Representative in Congress
From the State of California

Today, as we examine the lessons learned from the Upper Big Branch
mine disaster, let us never lose sight that there are 29 families who
lost their fathers, their brothers, their husbands and their best
friends.
Almost two years ago, this committee traveled to Beckley, West
Virginia where we heard chilling testimony from the families and miners
about the unbelievably terrible conditions in that mine.
Leo Long, a lifelong miner and grandfather of one of the 29 miners,
testified.
He said: ``I'm asking for you all to please do something for the
rest of the coal miners that's in the mines. I pray for it every night,
every day. If you don't do something, something like this is going to
happen again.''
Mr. Long, we hear your plea.
Since that hearing, there have been four investigative reports on
this tragedy. All of them found that Massey Energy caused the explosion
by failing to comply with long established safety standards.
Massey failed to prevent this tragedy because:
It didn't maintain the water sprays to quench the
ignition;
Or shore up the mine roof to keep the mine ventilated; and
And it failed to keep the mine rock-dusted to prevent a
coal dust explosion.
On top of Massey's failure to follow basic safety protections, it
also engaged in a pattern of obstruction.
Massey routinely provided advance notice of inspections,
which gave foremen time to correct hazardous conditions or stop
production before MSHA inspectors arrived underground.
Massey kept two sets of mine examination books;
And, Massey engaged in a pattern of intimidation by
threatening miner's jobs, if they tried to stop production to correct
unsafe conditions.
The Governor's Independent Panel concluded that these failures were
the result of a culture where ``wrongdoing became acceptable, where
deviation became the norm.''
Under the Mine Act, the mine operator is responsible for the health
and safety of its miners. And if that operator fails, it is up to the
safety agency to bend the operator back into line.
But MSHA's effort was compromised at UBB.
There were poor inspection practices, and a failure to
identify violations;
There was a failure to put this mine on Pattern of
Violations, or apply maximum penalties;
There was a failure to investigate Massey managers who may
have engaged in ``knowing and willful'' violations; and
Mine plans were approved without resolving safety
concerns.
Today we must examine why this happened. What broke down?
We know that budget cuts and retirements incapacitated MSHA's
effectiveness, particularly in the early 2000's.
Then, after three mine tragedies in 2006, Congress finally reversed
course and provided resources to put more inspectors back in the mines.
But the new inspectors didn't yet have the needed experience. And
there were not enough technical specialists. Violations went
undetected, including critical violations highlighted in the latest
NIOSH report.
Only a few weeks before the UBB explosion, MSHA inspectors were
underground near the source of the explosion, but the lead inspector
had only 13-months experience.
While MSHA definitely fell short, it was not for lack of trying.
MSHA issued $1.3 million in penalties prior to the accident. The agency
shut down parts of the mine 52 times in the previous year.
But these citations didn't change Massey's conduct.
In fact, rather than fixing problems, MSHA's penalties were met
with litigation, not compliance. At UBB, Massey contested 92 percent of
all penalties prior to the explosion.
What is clear is that MSHA was no match for Massey or any other
mining operator where corporate greed comes before the health and
safety of their workers
Today we recognize that the entire system failed the miners at
Upper Big Branch. Past Congresses shouldn't have slashed funding for
mine inspectors. MSHA needed to do a better job with the tools it had.
And Massey exploited MSHA's weaknesses and those in the law. The law
should have been much stronger because that is what it takes when an
operator has little or no regard for their workers.
We are prepared to work with our colleagues to enact meaningful
reform, so that we can honor Leo Long's plea and the lives of our
country's miners, because Mr. Chairman, the blood spilled by these
miners must not be in vain or forgotten, and we must protect all miners
from the errors that led to UBB disaster.
In closing, I want to welcome our witnesses, as well as
Representatives Rahall and Capito.
______

Chairman Kline. I thank the gentlelady.
Pursuant to Committee Rule 7C, all committee members will
be permitted to submit written statements to be included in the
permanent hearing record.
And without objection, the hearing record will remain open
for 14 days to allow statements, questions for the record, and
other extraneous material referenced during the hearing be
submitted in the official record.
Let me add my welcome today to our colleagues from West
Virginia, Mrs. Capito and Mr. Rahall.
Without objection Mrs. Capito and Mr. Rahall be permitted
to participate in our hearing today. And I hear no objection.
We have two distinguished panels of witnesses today. And I
would like to begin by introducing the first panel.
He is a panel of one, Assistant Secretary of Labor for the
Mine Safety and Health Administration, Joe Main.
Mr. Main has been a coal miner and mine safety advocate for
over 40 years. He worked for the United Mine Workers of America
in various positions from 1974 to 2002, including 22 years as
the administrator of UMWA's Occupational Health and Safety
Department. Prior to his nomination, he worked as a mine safety
consultant.
Welcome back, Mr. Main.
Before I recognize you to provide your testimony, let me
remind you of our quaint, but nevertheless important lighting
system there. It is a green, yellow, red--pretty self-evident.
We want to hear what you have to say. All of your testimony
will be included in the record. You are free to summarize as
you wish.
When we get into questions, I will be asking my colleagues
to stick to the 5-minute rule so that we can all have a chance
to engage in the discussion and have time for the second panel.
And with that, sir, you are recognized.

STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY, MINE
SAFETY HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR

Mr. Main. Thank you, Chairman Kline and Ranking Member of
the committee, and members of their committee as well.
I appreciate the opportunity to report on the April 5th,
2010 disaster at the Upper Big Branch Mine that caused the
death of 29 miners.
MSHA's actions since then, the findings of the internal
review into MSHA's activities before the explosion, and why
despite our efforts to use all of our tools, legislation still
needed to fully protect the nation's miners.
The tragedy, which occurred a few months following my
confirmation, was the deadliest coal mine disaster in 40 years,
has caused unimaginable grief for the families and loved ones
of miners, and it extends well, I think, beyond that.
But they all should want assurance that an explosion like
this never happens again. And that we are doing all that we can
to keep miners safe.
Our inquiries have been the most transparent MSHA has ever
conducted. Throughout, we have held numerous meetings with the
families as well as congressional and public briefings.
On December the 6th, 2011, MSHA's action investigation team
issued its final report. It found that the explosion was likely
started with a methane ignition that when fueled by excessive
amounts of coal dust transitioned into a massive coal dust
explosion.
The physical conditions that lead to the explosion were the
result of a series of violations of basic safety which were
disregarded at Upper Big Branch.
But it was also the unlawful practices implemented by
Massey that were at the root of the tragedy, such as advanced
notice of MSHA inspections, intimidations of miners, and
concealing hazards and injuries from regulators.
While most of Massey's top management at UBB exercised
their Fifth Amendment rights during the investigation, one
official recently validated our investigation's findings.
Gary May, a superintendent at the time of the explosion,
recently testified that it was standard practice at UBB to warn
employees underground of inspections and to fix or conceal
hazards before inspectors could observe them.
He also stated when he was a section boss, he would always
spread extra rock dust and make everything look good when he
was told an inspector was on the way.
The Massey operation was issued 369 violations totaling
$10.8 million in penalties. Alpha Natural Resources, which
acquired Massey after the explosion, did not contest these
violations and paid the penalties in full.
MSHA also conducted internal review and released its report
of March 6th which found that despite MSHA's District 4
aggressive enforcement efforts, which were among the toughest
in the nation, there were a number of deficiencies at UBB
including MSHA's failure to identify the extent of
noncompliance with rock dust standards along belt conveyors,
and significant shortcomings in the operators ventilation of
roof control plans.
The internal review also identified deficiencies in
District 4's adherence to MSHA's policies and procedures
including deficiencies cited by the previous internal reviews.
The internal review concluded that these deficiencies were
primarily a result of budget constraints and the attrition of
experienced staff which left District 4, and elsewhere, short-
staffed and with serious experienced deficits.
This was particularly true with our roof control
ventilation and other specialists.
The internal review team also acknowledged a fact that we
should not lose sight of. The challenges MSHA faced in
enforcement at UBB were created by an operator that
intentionally evaded the law and interfered with our efforts to
enforce it.
The internal review confirmed that the accident
investigation team's findings that Massey, not MSHA
enforcement, caused the explosion. We have reviewed the
internal review's findings and have implemented a number of
recommendations including reforms to be done before UBB. We
know more needs to be done.
We are also reviewing the conclusions and additional ideas
of the NIOSH independent panel. Since UBB, MSHA has worked
harder to use every tool at its disposal to ensure operators
provide a safe and healthy workplace for miners. We believe our
efforts are making a difference.
Our most effective enforcement tools were the impact
inspections which began immediately after the disaster.
Since April 2010, we have conducted more than 400 impact
inspections arriving at mines during off hours, often
monitoring mine communications to prevent unscrupulous
operators from giving advance notice.
We have strengthened our Pattern of Violations process to
make it as effective as we can under the current regulations.
For the first time in history, MSHA has placed two mines on a
Pattern of Violations, and has seen improvements in other mines
subject to the POV process.
Despite our efforts the current POV system is still flawed.
Our proposed rule that we have announced would address flaws in
the current rule that make it less effective than what Congress
intended for it to be.
MSHA has also beefed up enforcement of critical health and
safety requirements, taking regulatory action to improve
operator compliance; required mandatory 2-week, biannual
training of all field office supervisors; split District 4 into
two co-districts to better manage enforcement; reorganize the
Office of Assessments to centralize oversight of accountable
audits and the enhanced enforcement actions; and increased
efforts to educate miners and protect them from discrimination.
The majority of operators do try to obey the law. However
as UBB and our impact inspections illustrate, there are still
some operators who flaunt the law.
The administrative and regulatory reforms we are
implementing are not enough. As prior congressional hearings on
UBB tragedy have made clear, we do need legislative reform
without undercutting the critical provisions that have saved
many thousands of miners from death, injury, and illness.
The egregious problems MSHA continues to find, and the
tactics it must use in trying to outfox--operators validate the
administration's support for focused improvements to the Mine
Act.
Congress should address an equal certification processes
and work to strengthen the criminal provisions of the Mine Act.
We cannot tolerate employers who are knowingly risking the
lives of workers by cutting corners on safety or providing
advance notice of inspections.
Congress should provide MSHA with sufficient authority to
act quickly when the protection of miners and miners' health
require immediate action. Legislation must ensure miners are
fully protected from retaliation.
As this very committee learned during the field hearing on
the Upper Big Branch disaster in Beckley, West Virginia, miners
were often afraid to speak out because they fear losing their
jobs.
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.
And thank you, Mr. Chairman.
[The statement of Mr. Main follows:]

Prepared Statement of Hon. Joseph A. Main, Assistant Secretary of Labor
for Mine Safety and Health

Chairman Kline, Ranking Member Miller, 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 outline for you the results of MSHA's accident 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, as well as
the conclusions of the internal review on MSHA's activities at UBB in
the 18 months leading up to the explosion. I also want to report on the
actions that we have taken since the explosion and our plans for
further actions going forward.
The accident at UBB was the deadliest coal mine disaster this
nation has experienced in 40 years. The explosion occurred just months
after my appointment as Assistant Secretary, and the tragedy shook the
very foundation of mine safety. It caused us all to take a deeper look
at the weaknesses in the safety net expected to protect the nation's
miners. The impact the tragedy has had on the families of the miners
lost and the mining community is beyond measure.
There has been an intense examination of that tragedy, and MSHA and
the mining industry have undergone significant change as we have sought
to find and fix deficiencies in mine safety and health. While more
needs to be done, we have implemented a number of strategic actions
which I believe are improving mine safety.
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 in October 2009 with a clear purpose--to
implement and enforce 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. To honor the memory of the 29 miners who
died at Upper Big Branch, as well as their families, we have redoubled
our efforts to protect 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.
Mining is critically important to our economy, and it is our collective
responsibility to ensure effective health and safety standards are in
place and are followed to prevent injury, illnesses and death. Most of
the industry shares this belief and accepts its responsibility under
the Federal Mine Safety and Health Act (Mine Act) to comply with health
and safety standards to protect its workforce. Nevertheless, injuries,
illnesses, and fatalities have still taken an intolerable toll on
miners, their families, their communities and the mining industry.
Unfortunately, at UBB, Performance Coal and Massey Energy (PCC/Massey)
cut corners on safety and engaged in other illegal practices that
caused the explosion and impeded MSHA's ability to fully enforce the
Mine Act. We cannot allow this to happen again.
Upper Big Branch Accident Investigation
On December 6, 2011, MSHA's investigation team issued the results
of its investigation at UBB. The investigation, which lasted some 20
months, included a comprehensive underground examination and interviews
of nearly 270 individuals. In the course of the investigation, the team
reviewed approximately 88,000 pages of documentary evidence, conducted
detailed mapping of the mine, tested thousands of pieces of physical
evidence, and commissioned outside experts to assist in examining the
disastrous explosion. This investigation was the most transparent in
MSHA's history. From the time of the explosion through the December 6th
release of the accident investigation report, MSHA held 11 meetings
with family members, and consistent with Section 7 of the Mine
Improvement and New Emergency Response Act of 2006 (MINER Act), MSHA
family liaisons have been in continuous contact with the families. MSHA
also conducted two public briefings--one on June 29, 2011 and another
on the day of the release--regarding the status and findings of the
investigation. Leading up to the report release, MSHA continuously
posted information on the single-source page of its website as it
became available. On the day of the release, MSHA posted the report and
appendices, interview transcripts, maps and other documentation related
to the explosion. We also have held regular briefings for this
Committee's leadership and your staff on the status of the
investigation and our findings.
The accident investigation determined that the 29 miners who
perished at UBB died in a massive coal dust explosion that most likely
started with an initial methane ignition and was fueled by excessive
amounts of coal dust transitioning into a massive coal dust explosion.
The physical conditions at the mine that led to the coal dust explosion
were the result of a series of basic safety violations, which PCC/
Massey disregarded. They did not apply adequate amounts of needed rock
dust to areas of the mine involved in the explosion, allowing float
coal dust, coal dust and loose coal to build up to dangerous levels.
They did not comply with the mine's approved ventilation and roof
control plans and failed to conduct adequate on-shift, pre-shift, and
weekly examinations. They did not maintain the longwall shearer in
proper operating condition and failed to maintain a sufficient volume
of air in order to dilute or dissipate methane gas present in the mine.
The unlawful policies and practices implemented by PCC/Massey were
at the root of this tragedy. The management of PCC/Massey engaged in
illegal practices and procedures, including giving advance notice of
MSHA inspections, intimidation of miners, keeping two sets of books
that hid hazards from MSHA and others, and hiding injuries. The most
damning information to date on PCC/Massey's unlawful practices of
giving advance notice came to light after the accident investigation
and internal review reports were completed.
On February 29, 2012, the UBB mine foreman and block superintendent
at the time of the accident, Gary May, testified at the sentencing
hearing of Hughie Elbert Stover, UBB's security chief, who had been
convicted in Federal court for making false statements and obstruction
of justice and subsequently sentenced to three years in prison. For his
part, Mr. May recently entered into a plea agreement with the
Department of Justice (DOJ), admitting to conspiracy to give advance
notification of mine inspections, falsify examination record books and
alter the mine's ventilation system before Federal inspectors were able
to inspect underground. He explained that it was standard practice at
UBB to warn employees underground of Federal and State inspections, and
that this advance notice of inspections was used to ``fix'' hazards
such as coal accumulations, ventilation problems, and to apply rock
dust to ``make everything look good.'' Through these unlawful
practices, Mr. May testified that PCC/Massey was able to avoid
detection of violations by Federal and State inspectors. We still do
not have a complete picture of the appalling practices at UBB that were
designed to hide health and safety violations from inspection agencies,
but hope to learn more as events unfold.
Mr. May's testimony affirms findings of the accident investigation
team that PCC/Massey promoted and enforced a workplace culture that
valued production over safety, including practices that allowed it to
conduct mining operations in violation of the law by deliberately
hiding violations from MSHA and State regulators. MSHA's findings are
consistent with the conclusions of other reports about the tragedy,
including the reports from the State of West Virginia, the Governor's
Independent Panel and the United Mine Workers of America.
Massey was cited for 12 contributory violations, nine of which were
flagrant, and 360 non-contributory violations for total penalties of
$10.8 million. Alpha Natural Resources (Alpha), which acquired Massey
Energy after the explosion, did not contest these violations and paid
the penalties in full.
At the direction of the President, the Department of Labor has
fully cooperated with DOJ's investigation into possible criminal
wrongdoing at UBB. On the day the accident investigation report was
released, DOJ announced it had reached a Non-Prosecution Agreement with
Alpha that requires the company to make payments and expenditures
totaling $209 million. The Agreement obligates Alpha to implement a
number of safety improvements, including the use of coal dust
explosibility meters to allow immediate results of the combustibility
of mine coal dust to prevent mine explosions, atmospheric monitoring
systems to better detect conditions in the mine atmosphere to prevent
mine explosions, and oxygen cascading systems to help miners escape
during mine emergencies. This Agreement, however, does not relieve any
individual from potential criminal prosecution.
Findings of the Internal Review
MSHA conducts an internal review of its enforcement activities
after each mining accident that results in three or more fatalities. By
MSHA policy, the Director of Program Evaluation and Information
Resources (PEIR) forms the team and is responsible for overseeing the
review. For UBB, the team primarily focused on MSHA's actions in the 18
months leading up to the explosion, particularly in District 4, which
had jurisdiction over UBB. Secretary Solis asked the director of the
National Institute for Occupational Safety and Health (NIOSH), Dr. John
Howard, to identify a team to conduct an independent analysis of MSHA's
internal review in order to assure the transparency and accountability
of the review. On March 22, 2012, Dr. Howard transmitted NIOSH's report
of its independent analysis to the Secretary. We are currently
reviewing this report, including its conclusions and ideas for agency
action.
I asked that the internal review team carry out a thorough
examination of MSHA's activities at UBB. They produced the most
comprehensive and detailed internal review report that I have ever
seen. The team's report is the culmination of nearly two years of a
singularly focused effort, including interviews with nearly 90 current
and former MSHA employees and the examination of more than 12,500 pages
of documents. The report acknowledged the challenges the agency faced
in enforcing the Mine Act against an operator whose ``intentional
efforts to evade well-established Mine Act provisions * * * interfered
with MSHA's ability to identify and require abatement of hazardous
conditions at the mine,'' and found that MSHA actions or inactions did
not cause the explosion. The report did, however, identify a number of
deficiencies and make recommendations for improvement. The report
examined in depth the root causes of these shortcomings, which will
allow the agency to permanently fix deficiencies that have been
identified in internal reviews following other mine tragedies.
District 4 enforcement personnel were responsible for more coal
mines than any other coal district in the country. Nearly 30 percent of
the nation's underground coal mines and 14 percent of surface mines and
facilities were located in District 4. Yet, at the time of the
explosion, District 4 had less than 20 percent of the inspectors,
trainees and specialists in the Coal Mine Safety and Health Division.
During the 18-month review period that was the focus of the internal
review, District 4 was responsible for inspecting 193 underground mines
and 242 surface mines and facilities, and issued more than 35,000
citations and orders, which accounted for 23 percent of all violations
and 34 percent of all unwarrantable failure violations issued at all
coal mines nationwide. For years, unwarrantable failure citations and
orders have been considered the toughest tool available to inspectors.
In Fiscal Year (FY) 2009, for example, District 4 issued more
unwarrantable failure citations at UBB than any of the other 14,600
mines in the nation.
While the internal review found that District 4 had one of the
toughest enforcement records of all MSHA districts, it also identified
a number of instances where enforcement efforts at UBB were compromised
because established agency policies and procedures for inspections,
investigations and mine plan reviews were not followed. Inspectors did
not consistently identify deficiencies in the mine operator's program
for cleaning up accumulations of loose coal, coal dust and float coal
dust. They did not use PCC/Massey's examination books records
effectively when determining the operator's negligence in allowing
identified hazards to continue unabated. They did not identify the
extent of noncompliance with rock dust standards along belt conveyors
and did not identify significant deficiencies in the operator's
ventilation and roof control plans. The internal review did note,
however, that the thoroughness of District 4 inspections improved over
the 18 months preceding the accident.
The internal review also found that MSHA did not effectively use
other available elevated enforcement tools. For example, in eight
instances, District 4 inspectors did not flag certain violations as
potentially ``flagrant,'' even though these violations met the internal
guidance criteria for considering a violation for a flagrant
designation. In several other instances, it did not conduct special
investigations to determine whether PCC/Massey management had knowingly
violated mandatory health and safety standards. Moreover, the internal
review found that supervisors did not adequately review MSHA inspector
documentation related to UBB inspections to identify significant
deficiencies, or recognize that some portions of the mine had not been
inspected. The turnover of supervisors in District 4's Mt. Hope field
office--including untrained acting supervisors--contributed to the
inadequate review of inspection reports. The issue of turnover also
extended to the district manager position; between June 2003 and July
2004, four different MSHA personnel were temporarily assigned to this
position.
In addition, the internal review team extended its review to areas
unrelated to the explosion, such as respirable dust, where it found
District 4 personnel followed a flawed policy that allowed PCC/Massey
to manipulate MSHA procedures to avoid complying with reduced standards
for respirable coal mine dust, and allowed the operator to
significantly delay corrective action after such unhealthy
overexposures were identified. We are in the process of revising this
policy to require that reduced standards be maintained and enforced
until sampling data shows that it is no longer necessary.
A number of factors led to these shortcomings. For example, as the
internal review team noted, the number of coal enforcement personnel
had eroded to 584 by the end of FY 2005, a result of attrition and
budget constraints. By comparison, there were 653 such personnel in FY
2001. Following the 2006 Sago, Darby and Aracoma disasters, MSHA
received additional funds to hire more inspectors. However, despite
efforts to re-establish staffing levels, by the time of the UBB
explosion, the inspection and supervisory staff was significantly
composed of new inspectors, replacing a number of experienced
inspectors who retired. For example, from FY 2005 to FY 2008, MSHA lost
252 coal enforcement personnel from its ranks. Some inspectors retired,
were recruited by industry, moved to new positions within the agency,
or left MSHA for other reasons. As noted in testimony before this
Committee in February 2010, when I arrived at MSHA in October of 2009,
approximately 55 percent of Coal Mine inspectors and 38 percent of
Metal and Nonmetal inspectors had two or fewer years of experience as
an inspector. The budget constraints and constant loss of experienced
personnel due to attrition adversely affected the entire agency (See:
Chart A).
MSHA also experienced an alarming reduction in the number of
specialists in the coal division to assist with plan reviews and
conduct technically specialized portions of inspections. Between FY
2001 and FY 2006, the number of MSHA subject matter specialists in coal
mine ventilation, roof control, electrical systems, occupational
health, and impoundments fell from 241 to 170, a 29 percent drop (See:
Chart B). During this same period, the number of Mechanized Mining
Units (MMUs) in the nation rose from 834 to 1,180, a 41 percent
increase (See: Chart C), creating a greater need for specialists in
underground mines. In addition, in order to complete all mandatory
inspections required under the Mine Act, specialists were being asked
to assist with more general inspection duties. Even with this extra
assistance from our specialists, not all mandatory inspections were
being completed.
Mining is a highly technical field, and new hires go through
extensive training for up to two years and receive on-the-job training
from a journeyman inspector. As a result, even the most experienced of
these new inspectors had only been conducting Federal mine inspections
for a couple of years. In addition, when new inspectors were hired
after 2006, there were not enough experienced inspectors to mentor them
or oversee their on-the-job training. For example, in FY 2007, one-
third of MSHA enforcement personnel nationwide and in District 4 were
still considered trainees. Moreover, agency experience among lead
inspectors assigned to UBB during the 18 months preceding the explosion
ranged from 13 to 52 months. The reduction of staffing and drain of
experienced staff during the early to mid-part of the 2000s, combined
with the lack of experience of their replacements, had a significant
adverse impact on the agency from which we were only beginning to
recover at the time of the April 2010 disaster.
Massey's deceptive and illegal actions significantly interfered
with District 4's ability to effectively enforce the law at UBB, as
Gary May's recent testimony revealed. Nevertheless, MSHA assumes
responsibility for its actions and inactions at UBB and takes the
deficiencies and recommendations outlined in the internal review report
extremely seriously. We have already implemented many actions to
improve enforcement, and set a timetable for implementing the internal
review team's recommendations. We are also reviewing the regulatory
recommendations of both the accident investigation team and the
internal review team to determine which regulatory changes to pursue.
MSHA Actions to Improve Safety
The tragic events of April 5th changed the lives of many people in
varying degrees--the miners' families, their communities, miners around
the country, and those of us at the Department of Labor dedicated to
mine safety. President Obama said shortly after the accident that ``we
owe [those who perished in the UBB disaster] more than prayers. We owe
them action. We owe them accountability.'' MSHA and the Department of
Labor have worked diligently to make good on the President's promise.
MSHA's actions--including initiatives started both before and in
response to Upper Big Branch--have been strategic and focused, and they
are making a difference.
While we will be implementing the recommended improvements
contained in Appendix A of the UBB internal review report, I want to
share with you some of the significant changes we have already made and
the further actions we intend to take to ensure miners' health and
safety.
Enforcement
In the months after the disaster, MSHA issued new enforcement
policies and alert bulletins addressing hazards identified after the
explosion, such as prohibition on advance notice of MSHA inspections,
mine ventilation and rock dusting requirements, and the rights of
miners to report hazards without being subject to retaliation. The
intent of these efforts was to ensure that miners and mine operators
understand important enforcement policies, as well as strengthen agency
enforcement in key areas related to the disaster. For instance, in
September 2010, MSHA issued an emergency temporary standard that
strengthened rock dusting requirements in all accessible areas of
underground bituminous coal mines to prevent explosions. MSHA issued a
final rule in June 2011.
MSHA also started changing the way it does business to ensure that
appropriate efforts are focused on operations that pose the greatest
risk to the safety and health of miners. One of our most effective
enforcement tools to facilitate this change is our impact inspections.
Immediately after the disaster at UBB, we began to conduct strategic
``impact'' inspections at coal mines with a history of underground
conditions that indicated potential problems relating to methane
accumulations, ventilation practices, rock dust applications and
inadequate mine examinations. In August 2010, I issued an agency
directive expanding impact inspections to coal and metal/nonmetal mines
that merit increased agency attention and enforcement due to their poor
compliance history or particular compliance concerns. As I noted in
testimony before this Committee previously, these impact inspections
have shaken-up even the most recalcitrant operators. MSHA has shown up
at mines during ``off hours'', such as evenings and weekends, and has
monitored mines' phone lines upon arrival to prevent unscrupulous
operators from giving advance notice of the inspectors' presence. Since
April 2010, we have conducted more than 400 impact inspections at coal
and metal/nonmetal mines.
While we believe these strategic inspections are making a
difference and improving safety and health conditions in the nation's
mines, there are still some operators who continue to flout the law and
MSHA continues to encounter operator tactics to prevent inspectors from
finding hazards. For example, I previously reported to you on a mine in
Claiborne County, Tennessee, where MSHA inspectors monitored company
phones during the evening shift and found numerous ventilation, roof
support, and accumulation of combustible materials violations. These
conditions potentially expose miners to mine explosions, roof falls,
and black lung disease. MSHA issued 27 citations and 11 orders as a
result of that inspection. In November 2010, this same mine was given
notice of a potential pattern of violations (PPOV) of mandatory health
or safety standards under Section 104(e) of the Mine Act. In July 2011,
MSHA inspectors conducted a sixth impact inspection at the mine,
seizing and monitoring mine communications to prevent advance notice of
their arrival. MSHA issued 32 citations and orders, including eight
closure orders for the operator's unwarrantable failure to correct
conditions that could have prevented miners from safely evacuating the
mine in the event of a fire, explosion or other emergency. This
troubled mine eventually ceased operations. In another example, just
last month, our inspectors witnessed a mine employee calling
underground to provide advance notice of the inspection during an
impact investigation of an underground coal mine in West Virginia.
We have made significant improvements to another of our enforcement
tools, the pattern of violations (POV) process, making it as effective
as we can under current regulations. The Mine Act provides for an
administrative process under which a mine identified to have a pattern
of ``significant and substantial'' (S&S) violations receives closure
orders for each S&S violation until it receives a clean inspection. In
October 2010, we overhauled the POV process to focus on mines with the
worst records and require operators to make significant and lasting
safety improvements. MSHA has conducted two screenings under the
revised criteria, and issued a total of 28 potential patterns of
violations (PPOV) notices at 26 mines. MSHA provides a PPOV notice to
operators to give them an opportunity to improve compliance before
being placed on a POV. Notably, four of these PPOV notices were issued
on the basis of agency audits revealing that mine operators under-
reported injuries; otherwise, the mines would have avoided our
screening process. Two of the mines have been placed on a POV. Last
year was the first time in the Mine Act's 34-year old history that MSHA
issued POV closure orders. The POV process is open and transparent. The
criteria we use for PPOV screenings are posted on our website, and in
April of last year, we announced a new online tool which permits any
mine operator, miner or member of the public to see whether a mine is
meeting the criteria for a PPOV. Any operator can use the tool to
monitor its compliance and implement immediate corrective actions if
its violation history could trigger a PPOV notification.
Despite our efforts to improve the current POV process, it is still
flawed. On February 2, 2011, MSHA proposed a rule revising the pattern
of violations regulations to better reflect the intent of Congress.
Under current regulations, a POV notice can only be based on final
orders. However, given the backlog of cases pending before the Federal
Mine Safety Health and Review Commission (FMSHRC), discussed in more
detail below, significant delays lasting years frequently occur before
serious violations become final and can be considered part of a POV. In
the meantime, miner safety and health is still at risk. The proposed
rule would eliminate the requirement that a POV notice be based on
final orders. In addition, it would eliminate the PPOV process,
requiring operators, not the government, to take responsibility for
monitoring their compliance and taking corrective action. We are
considering the public comments we have received on the provisions of
this proposed rule and expect a final rule to be published this spring.
While improvements are needed, we believe that MSHA's enforcement
efforts thus far are bringing about improvements in compliance and in
safety and health conditions. A recent review of mines subject to the
impact inspection program showed that violations per inspection hour
are down 11 percent, S&S violation rates are down 18 percent, closure
(104(d)) orders are down 38 percent, and the total lost time injury
rate is down 18 percent. An analysis of the 14 mines completing the POV
process under our current criteria showed similar overall improvements.
The violation rate at those mines is down 21 percent, the total S&S
violation rate is down 38 percent, and the rate of closure (104(d))
orders is down 60 percent. The lost time injury rate has dropped 39
percent.
There are also reductions in violations across the mining industry.
The number of citations and orders issued by MSHA has decreased from
over 170,000 in 2010 to about 158,000 in 2011. For underground coal
mines, 77,000 citations and orders were issued in 2011, down from about
80,000 in 2010. We believe the reduction in violations reflects
increased compliance.
Training, Administration and Management
We have undertaken a number of actions beyond the enhancements to
our enforcement programs, some of which were included in
recommendations by the UBB internal review. One of the programs I
focused on when I arrived at MSHA was a new training program for all
field office supervisors to improve oversight of the inspection program
and consistency in enforcement of the Mine Act. With the changeover in
agency staffing, training of front-line supervisors to foster effective
management and consistent enforcement was critical. I first announced
this program to the Committee in February 2010. The training, which
field office supervisors must now take on a bi-annual basis, was
developed just prior to the UBB disaster and includes subjects
identified in past internal reviews and agency audits. It will also be
updated to address the findings of the UBB internal review team. All
coal and metal/nonmetal field office supervisors have completed this
training for the Calendar Year (CY) 2011-2012 cycle.
In 2010, I also required the administrators for Coal and Metal/
Nonmetal to establish a plan to review all the policies and procedures
inspectors must follow when conducting inspections. The purpose of this
review was to identify inefficiencies and impediments in the inspection
process; better explain policies to mine operators and employees; and
update existing policies to incorporate some of the past findings and
recommendations from agency audits internal reviews, and other
government studies and investigations. The first review phase, for Coal
Mine Safety and Health, was completed in January 2012 and produced a
comprehensive draft document that incorporates all identified
inspection policies, procedures, forms, and past findings and
recommendations for inclusion into a single inspection handbook. An
agency task force, established in January 2012, has begun the next
phase of reviewing and finalizing the draft, which will culminate in a
new, comprehensive inspection handbook that lays out clear, consistent,
and easily accessible guidance to MSHA inspectors in a format that can
be easily updated and made available electronically. This should result
in improved quality and consistency of inspections. Metal/Nonmetal is
working on a parallel path with its own handbook.
In February 2012, I directed the reinstitution of a centralized
administrative review process for all of the agency's directives. As
the internal review found, the agency's directives system was not
effectively communicating agency policy to the field. We will fix that,
starting with centralized oversight of the development and
dissemination of directives and better controls on how they are issued
and distributed.
In June of 2011, we announced a new MSHA district in southern West
Virginia. To help manage the large number of coal mining operations in
that region, we split District 4 into two districts, creating District
12. The split will increase line and management staff in southern West
Virginia, providing more enforcement resources and better oversight of
enforcement personnel.
Also in June 2011, MSHA transferred the management and operation of
the National Air and Dust Laboratory in West Virginia from the coal
program to our Office of Technical Support, in response to an Inspector
General recommendation that MSHA upgrade the lab to improve its rock
dust analysis turnaround time. We have improved the turnaround time,
and are taking other actions to improve and modernize the lab, which
processes approximately 50,000 inspector rock dust samples for total
incombustible content, and 40,000 mine gas samples per year.
In February 2012, I announced a reorganization of MSHA to
centralize oversight of certain cross-cutting, compliance-related
actions. The Office of Assessments, Accountability, Special Enforcement
and Investigations (OAASEI) will now incorporate the management,
support, and coordination of routine and special assessments, as well
as agency headquarters accountability functions and special enforcement
strategies. Under this reorganization, MSHA consolidated its current
headquarters accountability functions, as carried out by the Office of
Accountability, within the OAASEI. As background, the Office of
Accountability originally was created in response to internal reviews
of the Sago, Aracoma and Darby mine disasters that were critical of
MSHA's pre-accident enforcement activities and questioned whether
policies intended to prevent serious mine disasters were being properly
and effectively implemented. However, by re-establishing headquarters
accountability functions within the OAASEI, MSHA will enhance the
management, administrative, and analytical support for this component
while retaining OAASEI's independence from the mine inspection program
areas.
This reorganization also establishes a single office within OAASEI
for the coordination of a number of special enforcement strategies,
including: flagrant violations, investigations of retaliation claims
and possible criminal violations, impact inspections, the pattern of
violations program, and the use of injunctive authority. The formation
of OAASEI will enable MSHA to better manage and coordinate its use of
special enforcement tools against the most serious violators of the
Mine Act.
Finally, as I have mentioned, in the last decade MSHA suffered
significant attrition among its experienced personnel. As a result, we
are exploring how to address the succession issue at MSHA.
Proactive Accident Prevention
The UBB disaster highlighted the need to ensure that mine operators
take seriously their obligation to find and fix the hazards in their
mines instead of waiting for MSHA to point out problems. As I have
stated since my first hearing before this Committee in February 2010,
MSHA cannot be on every shift at every mine, and any effective
enforcement regimen must require to operators to take ownership of
health and safety at their mines. On December 27, 2010, MSHA published
a proposed rule that would revise existing 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
quarterly with mine examiners all citations and orders issued in areas
where examinations are required. This rule would reinstate requirements
that were in place for some 20 years following the passage of the 1969
Mine Act. We expect the final rule to be published soon.
We have not focused just on preventing mining disasters, but also
on the most common causes of mining deaths, such as accidents involving
the use of machinery and equipment. As you know, we launched our multi-
phase Rules to Live By (RLB) initiative in January 2010, to focus
attention on the most common mining deaths and the associated safety
standards. In particular, this initiative identifies for operators the
standards that will be a focus of enforcement so they can take
appropriate preventative measures. The second phase, ``Rules to Live By
II: Preventing Catastrophic Accidents'' followed in November 2010, and
in January of this year we announced the next phase, Rules to Live By
III: Preventing Common Mining Deaths. RLB III highlights those safety
standards cited as a result of at least five mining accidents and
resulting in at least five fatalities during the 10-year period from
January 1, 2001, to December 31, 2010.
We believe these efforts are saving lives. Preliminary data shows
37 miners died in work-related accidents at the nation's mines in
2011--the second lowest since statistics have been recorded. There were
21 coal mining and 16 metal/nonmetal mining deaths last year compared
with 48 and 23, respectively, in 2010--which included 29 at Upper Big
Branch. In 2009, we saw the lowest fatality numbers with 34 total
mining deaths, of which 18 were in coal. It is also important to note
that the mining industry finished fiscal year 2011 with the lowest
number of mining deaths ever recorded. However, as low as the fatality
numbers have come in recent years, we all know that one death is one
too many; that mining deaths are preventable; and there is more that
must be done.
Backlog of Contested Cases
The UBB disaster underscored the need to address the backlog of
cases at the Federal Mine Safety and Health Review Commission (FMSHRC).
At the time of the disaster PCC/Massey was contesting 92 percent of the
penalty dollars proposed by MSHA, adding to the backlog. In addition,
because its cases were not being resolved in a timely fashion, the
penalties did not have the intended deterrent effect on Massey's
conduct. In fact, Massey had $1.3 million in pending proposed penalties
right before the explosion. We have taken a number of actions to attack
this problem. First, the Department is putting to use the
appropriations that Congress provided for the Department and FMSHRC to
reduce the backlog. These extra resources have helped us to resolve
cases and significantly reduce the number of contested violations, from
almost 89,000 in January 2011, to fewer than 67,000\1\ in December
2011, a 25 percent reduction in the span of just one year.
---------------------------------------------------------------------------
\1\ These numbers are cite violations and are based on MSHA's data.
The numbers differ from FMSHRC data, which cites cases not violations.
---------------------------------------------------------------------------
In January of this year, MSHA began to implement pre-assessment
conferencing procedures. The new procedures are based on the results of
a pilot program launched in August 2010, which evaluated the impact of
pre-assessment conferencing on operators' decisions whether to contest
citations. The evaluation incorporated input from industry
stakeholders, including mine operators and miners' representatives.
During the pilot program, operators frequently opted not to participate
in pre-assessment conferences, but there was a high resolution rate for
those that did.
Each MSHA district must determine when to implement the pre-
assessment conferencing procedures based on available resources.
Implementation may occur slowly, or not at all in some districts, until
other backlog reduction strategies take hold and reduce caseloads to
more manageable levels. Although no single strategy will reduce the
backlog of contested cases before FMSHRC, MSHA believes this may help
resolve some cases. Last year, FMSHRC instituted a rule regarding
simplified proceedings. To further reduce the number of contested
cases, we are also pursuing agreements, such as global and holistic
settlements, that would settle a large number of violations at one
time. As I noted above, Alpha agreed to withdraw many notices of
contest from the Massey legacy companies and pay the penalties in full.
This action alone has reduced contested violations pending at FMSHRC by
more than 6,600.
Mine Emergency Response
Prior to UBB, I ordered a review to identify gaps in the nation's
mine emergency response system. During our response to the disaster,
while I was able to witness firsthand the heroic efforts and selfless
commitment of company, State and Federal mine rescue crews, I also saw
first-hand several critical gaps in communications and logistics that
remain unfixed from past emergencies.
As I noted in earlier testimony, MSHA has made progress in this
area, but there is more to be done. MSHA is continuing its thorough
review of emergency plans and procedures to identify and fix gaps in
the system. On May 7, 2012, I am convening a two-day mine rescue summit
at the MSHA Academy in Beckley, WV. Mine rescue experts from all
sectors of the mining community have been invited to attend. The summit
coincides with mine rescue competitions, so those participants can
attend the summit as well. The goal of the summit is to provide
information from all sectors about the latest improvements in mine
rescue, to identify remaining gaps in mine rescue response and
preparedness, and to decide what further actions are needed to ensure a
swift and comprehensive response from government, industry and others
when a mine emergency happens.
Something that should not go unnoticed is that the 2006 MINER Act
greatly enhanced our mine rescue response to the UBB 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 UBB greatly appreciated
this improvement in mine rescue team strength and preparedness.
Protecting the Rights of Miners
The UBB tragedy crystallized the concern that more needs to be done
to provide miners with a voice in the workplace to help ensure that
miners are not intimidated from voicing safety concerns when they see
poor safety practices and hazards. This was illustrated at the field
hearing held by this Committee in Beckley, West Virginia in May of
2010, when the UBB accident brought into public view a culture in
mining that many of us here have witnessed for years. That is one in
which workers are afraid to speak up about safety hazards because of
fear of losing their jobs. Miners raising their voices about safety
concerns will serve to make mines safer and healthier places to work.
Having a voice in the workplace is not just a mining issue--it is a
right that all workers have. Department of Labor Secretary Hilda Solis
has said that her vision for the Department is ``Good Jobs for
Everyone.'' One of the components of a good job is that it is safe,
secure, and provides workers with a voice in the workplace. I share the
Secretary's strong commitment to good jobs and worker voice.
To reflect our commitment to worker voice, we are using all our
available tools to protect miners from discrimination when they make
complaints about dangerous conditions, or exercise other rights
provided to them under the Mine Act. The fear of losing a job--even
temporarily until a discrimination claim can be litigated--makes a huge
impact on a breadwinner for a working family, and can force a miner to
choose the care of his or her family over other safety concerns. At
UBB, we discovered from family and friends of the deceased miners, that
many of those miners were afraid of the conditions at UBB but needed
their jobs to provide for their families. Between 2006 and the date of
the UBB explosion, for instance, MSHA received only one complaint about
the conditions at UBB.
We have stepped up the use of our authority under the Mine Act to
request temporary reinstatement for miners who claim unlawful discharge
while we fully investigate the case. From October 2007 to September
2009, the Department of Labor pursued a total of nine temporary
reinstatement cases. By comparison, from October 2009, the month I took
office, to September 2011, DOL sought 48 temporary reinstatements, an
increase of more than 500 percent. For all types of Mine Act
discrimination cases during that time period, the number of cases that
DOL pursued rose by over 100 percent.
MSHA also has made new efforts to educate miners about the Mine
Act. In June 2011, we launched a campaign to inform miners of their
rights, including the right to refuse to work in dangerous conditions,
the right to file a complaint or report a hazard with MSHA, and the
right to select a representative in safety and health matters. We have
shipped over a million pieces of information, including guidebooks,
wallet cards, flyers and other materials to our field offices, in
English and Spanish; our inspectors and Educational Field Services
staff are distributing them to miners. MSHA also produced an online
guide to miner's rights and responsibilities and a training video on
that is available on our website.
Need for Legislation
Almost two years have passed since we lost the 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
successful. In addition, proposed regulatory actions, if implemented,
will make operators more responsible for finding and fixing violations
and will help us more effectively address mines with continuing
problems. Our 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.
Despite our efforts, there are operators who continue to violate
the law and place miners at risk. We all know MSHA cannot be at every
mine all the time. As we are learning from the DOJ's criminal
investigation of UBB, even when MSHA is there, a determined operator
that intimidates miners and willfully engages in a pattern of
subterfuge will be at least partially successful in hiding hazardous
conditions and practices from MSHA, with potentially tragic results. We
need to change the culture of safety in some parts of the mining
industry, so that operators are as concerned about the safety of their
miners when MSHA is not looking over their shoulders as when MSHA is
there.
In addition, the egregious problems found during some of our impact
inspections and the extreme measures MSHA has had to take to find
them--arriving off-shift and monitoring mine phones--validate the
Administration's support of focused improvements to the Mine Act to
give MSHA the tools it needs to address chronic violators that fail to
take responsibility to operate safely and within the law.
I hope that we can work together across the branches and political
parties to address at least the following areas:
Certification Procedures: Federal law does not contain
comprehensive certification requirements or any means for revoking
certifications of miners in the most critical safety sensitive
positions, such as mine superintendents, mine foremen, or mine
examiners. Legislation enabling MSHA to establish minimum
qualifications for certification for these positions, and a
decertification process for the failure to properly perform the
required duties of such positions, would improve miners' performance of
key health and safety functions, and create a strong deterrent against
putting profits above safety. Any such legislation should also provide
for coordination with state programs.
Criminal Penalties: Legislation should strengthen the criminal
provisions of the Mine Act. No mine operator should risk the lives of
its workers by cutting corners on health and safety, but for those who
do, we need to remove obstacles to prosecution and provide sufficient
deterrence against endangering the lives and safety of miners. We hope
and intend that criminal prosecutions under an enhanced Mine Act would
continue to be rare, but we should remove legal obstacles that
currently make cases difficult to prove. Earlier this month, for
example, Murray Energy, a subsidiary Genwal Resources, Inc., pled
guilty to two misdemeanor counts for its criminal conduct prior to the
2007 Crandall Canyon mine disaster that killed eight miners and an MSHA
inspector. In accepting the plea agreement that only required Genwal to
pay a fine of $500,000, U.S. District Judge David Sam expressed his
``outrage at the minuscule amount of the penalty provided by the
federal statute.'' We hope that although new legislation would remove
the obstacles to criminal prosecution, such prosecution would remain
rare for the right reason: because a stronger law provides a successful
deterrent.
Enhanced criminal penalties should also extend to those who provide
advance notice of MSHA inspections. At UBB, PCC/Massey used advance
notice to warn those underground that an inspector was on the premises
and to order miners to hide hazardous conditions. As we all know, the
consequences of that activity were tragic.
Even in the aftermath of UBB, there have been troubling reports of
some operators continuing to provide advance notice of an MSHA
inspection to hide violations and carry out other conduct that puts
miners at serious risk. Finally, legislative reform should aid
prosecutors in holding accountable corporate decision-makers when their
actions demonstrate a criminal disregard for the lives of miners.
Expanded Authority to Address Mines with Systemic Health and Safety
Problems: The current law does not have a ``quick fix'' to the safety
of mines like the Freedom Energy Mine, where MSHA for the first time
ever sought an injunction for a pattern of violation under section 108
of the Mine Act to change a culture of non-compliance that threatened
the safety and health of the miners. While MSHA was successful in
compelling the mine to implement additional safety and health
protections as a result of using section 108(a)(2), the current statute
could be simplified to help MSHA adequately protect miners. The lesson
learned is this: the litigation process using the existing tool may be
slower than needed to protect miners, and new legislation should
consider language that clearly provides the Secretary of Labor with
sufficient authority to act when she believes protecting miner safety
and health requires immediate action.
Whistleblower Protection: New legislation must ensure that miners
are fully protected from retaliation for exercising their rights.
Because MSHA cannot be in every mine during every shift, 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 tragedy occurs. Yet, as we heard from
miners and family members testifying at the House Education and Labor
Committee's May, 2010 field hearing in Beckley, West Virginia, miners
were afraid to speak up about conditions at UBB. 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 stronger
remedies and a better process is urgently needed.
Conclusion
Thank you for allowing me to testify before the Committee. April 5,
2012 will be the two-year anniversary of the tragedy at Upper Big
Branch. Along with the families, we mourn the deaths of these 29
miners.
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.

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______

Chairman Kline. Thank you, Mr. Secretary.
You mentioned in your testimony and every investigation and
every report of the Upper Big Branch disaster has made it
perfectly clear that Massey was operating outside the law.
There is no question. They are officially one of the bad guys
here.
But you are here today representing MSHA, the agency that
is tasked with ensuring the safety in our nation's mines. And
that included of course, safety at the Upper Big Branch.
So I would like to quote again from NIOSH's independent
review where they said, ``If MSHA had engaged in timely
enforcement of the Mine Act and applicable standards and
regulations, it would have lessened the chances of, and
possibly could have prevented, the Upper Big Branch
explosion.''
Do you agree with that statement?
Mr. Main. You know, that is a----
If you look at all the investigative findings thus far, and
I believe even the NIOSH report pointed this out, that Massey
caused this disaster.
Having said that, I can't say for certainty that it could,
or could not, have been preventable. I think the--you know, we
look at all the facts that are on the table. But what I firmly
believe, I haven't seen the facts that tell me that we could
have taken the action necessary to have stopped that.
There are a lot of things we should have done differently.
There are a lot of things we could have done differently.
But it is my firm belief, Mr. Chairman, that if an
inspector had walked into that mine on April the 5th, found
what was going on, they would have shut it down in a heartbeat.
I really believe that.
Chairman Kline. So the question sort of remains that MSHA
had a number of opportunities, and you have seen that in the
reports, your own investigation, and NIOSH's investigation, to
see what was going on even though Massey was engaged in
violation of the law.
And this seems pretty clear to me that if MSHA had engaged
in timely enforcement of the Mine Act and applicable standards
and regulations, it would have lessened the chances of and
possibly could have prevented the Upper Big Branch explosion.
And your----
Mr. Main. Well, I am saying basically what--and I have
looked at a lot of the facts in this case and tried to plow
through everything that has been developed. And I think some of
the issues that have been raised maybe point a closer fix on
the question you raised or the inspections that were done over
the last inspection period.
The question is did MSHA identify float coal dust in that
mine that they didn't take appropriate action on?
I mean if you look at it from that sense.
I have found no case where they identified float coal dust
in that mine and did not take action.
With regard to the inspections that you referred to, the
four inspections, actually the four inspections that took
place, only one of them was a regular inspection.
The others were in--I think, one case a blitz inspection
that took place where a team of inspectors went to the mine for
the purpose of addressing a serious ventilation problem.
Actually issued an order upon their arrival, and spent their
time dealing with the ventilation problem. And they had the
mine down actually for about 3 days during the order.
And I think the other inspection that was involved in the
four inspections was where an inspector went up to the
tailgate, but it was in this entry that was the return off of
tailgate 22 was isolated from the whole tailgate entries as
well.
So I think there is a series of facts there that I think
you have to look a little bit deeper at. But, you know, in
terms of the rock dusting issue, and let me just swing back to
that.
I don't know if folks have had a chance to read the
testimony of the superintendent, Gary May, who testified before
a proceeding--a sentencing proceeding about 3 weeks ago.
Where he admitted, as the superintendent of the mine, that
they used advanced notice to keep MSHA from learning what the
hazards were, what the violations were. He even said as a
section boss, whenever MSHA would come into their mine, he
would scatter a little bit of rock dust around basically to
pretty it up and make it look like he had been rock dusting.
In the areas that the inspectors were in, prior to the
explosion, they were up on Headgate 22, which was the
development section on the northern side of the mine. This is
where the explosion forces was the worst in that mine that we
found, where the fuel loading was the heaviest.
On March the 15th, inspectors went into that section, did
their inspection, sampled the rock dust. That rock dust went to
the lab. And what the lab found--and this came out post-
explosion--what the lab found was at that time that section was
basically in compliance.
All the samples were in compliance with one which is fairly
close.
Now between the 15th of March and April 5th, something
happened. And the inspectors of course, we knew was not back
into that area. But if you look at the company's record books
during that period, it appears that there was a lot of float
coal dust and combustible material building up.
If you look at the belt entry, which was for the longwall,
which was the area that the explosion travelled through,
inspectors went into that area on March the 15th, conducted an
inspection, issued an order on, I believe, the tail drive of
the belt, and had a citation on the entire belt itself, the
whole longwall belt.
They went back in, I believe it was on the 24th of March,
to make their last inspection which they required the company
clean it up and rock dust that belt. That was terminated based
on the inspection on the 24th, I believe, of March.
That was the last time an inspector was in that area.
And if you look at the company record books of the float
coal dust and the coal spillage that was occurring from the day
of the explosion back, you are going to find there is a heavy
listing of conditions----
Chairman Kline [continuing]. My time has expired. And I
know I have all of my colleagues are eager to engage in this
conversation.
So I am sure we will continue to pull this out.
It is unfortunate that apparently depends on which set of
the company's books that you were looking at, the ones that
they cooked or the real books.
Mr. Miller?
Mr. Miller. Thank you very much, my apologies for coming
late to the hearing. I want to thank Ms. Woolsey for providing
the opening statement and sitting in the chair for that moment.
Mr. Main, thank you very much for your leadership at MSHA.
And thank you for your leadership in response to this tragedy,
and rebuilding the resources in MSHA so we don't have to go
through this again hopefully ever again.
I want to read, you mentioned, Mr. Gary May. I want to read
from his court transcript in a back and forth with the U.S.
Attorney's office.
And the question is, ``Mr. May, while you were up at Upper
Big Branch Mine, was there a practice of providing warnings
when MSHA inspectors were coming to the mine?''
Answer: ``Yes.''
Question: ``Can you tell us from beginning to end, how
these warnings were communicated.''
Answer: ``It would start usually with someone came through
the guard shack. There would be a phone call and it would be
announced over the radio. It would be, quote--'company on
property'. From that point it would be received at the office.
And from the office they would call underground and let them
know that we had, quote--'company'.''
Skipping forward in this discussion:
Question: ``How often at Upper Big Branch Mine were the
warnings given that inspectors were coming on the property?''
Answer: ``A lot.''
Question: ``Was it most of the time?''
Answer: ``Yes.''
Question: ``Was the Upper Big Branch Mine able to avoid
citations from MSHA because of the practice of advance warning
of inspections?''
Answer: ``Yes.''
Question: ``Did you know if it was illegal to give advice
notice of a mine inspection?''
Answer: ``Yes, I knew it was unlawful.''
Question: ``Did your superiors at Upper Big Branch Mine
know about this practice of giving advance notice to
inspections?''
Answer: ``Yes.''
Question: ``Did they encourage it?''
Answer: ``They did.''
When asked whether he would spread rock dust when he was
warned inspectors were coming, Mr. May answered, quote--``I
always spread extra rock dust if I knew someone was coming to
make everything look good,'' unquote.
How do you conduct inspections in that kind of atmosphere?
Mr. Main. It is almost impossible to be able to enforce the
law when those kind of activities are in place.
Mr. Miller. Does your report corroborate with what Mr. May
said that this happened most of the time, all of the time on--
--
Mr. Main. I have to give----
Mr. Miller [continuing]. Came on the property?
Mr. Main. Yes, I have to give our inspectors credit.
Despite that plan, the year before this explosion, they issued
more closure orders--of one authority closure orders at that
mine--any mine in the United States.
So I think that that showed the fact that we had some
pretty aggressive inspectors. But there is a lot we didn't
know.
There is a lot that they did hide, I believe.
Mr. Miller. But in this case, the discussion is really
about a calculated interference. This was a matter of company
policy apparently.
That if inspectors were on the property, efforts were made
to move them either to other parts of the operation or to shut
down operations, or clean them up prior to letting the
inspectors come to that part of the active mine.
Is that correct?
Mr. Main. I think they hid a lot of stuff from regulators,
yes.
Mr. Miller. Now, in the NIOSH report, it is pretty clear
that there were procedures that just didn't fall in place in
terms of looking at some of the report that were filed by
inspectors and taking action on those reports.
Is that correct?
Mr. Main. I am sorry. I didn't----
Mr. Miller. In the criticisms of the agency, the suggestion
is then that some reports were made and action wasn't taken.
They were sort of left on the shelf, if you will, for an
extended period of time.
Mr. Main. Yes. I don't think there is any question that
there was things that we could have done better at Upper Big
Branch.
Mr. Miller. Go ahead.
Mr. Main. But I think by the same token, what you are
expressing here--what the agency was up against that was well
articulated by the Superintendent May, was a challenge
sometimes beyond the capability of any inspector, even
experienced inspector to catch up with.
Mr. Miller. But in your internal review, you say however--
on page 107--however, District Four did not collect rock dust
samples in the longwall gate entry at UBB after the longwall
began production. Nor did MSHA proceed just specifically direct
them to do so.
So was the guidance wrong? Or was this inspectors not doing
their job? Or was there an improper guidance for----
Mr. Main. There is a guidance issue. And this is something
the report gets into
There was a serious problem with the policies of the
agency. There was a system that was in place up to 2002. It was
dismantled for whatever reason.
From that point forward, every programmer really was on
their own to develop policies and to implement those in what
the internal review team found was that the--I think there was
like 199 policies that was generated from 2004 forward. And
depending on when he was hired, he may or may not have known
about those. And one of them dealt with rock dusting.
Different inspectors had different instructions about how
to do rock dust sampling in the mine.
Mr. Miller. Thank you.
Chairman Kline. I thank the gentleman.
Dr. DesJarlais?
Mr. DesJarlais. Thank you, Mr. Chairman.
Mr. Main, one of the conditions that led to the
catastrophic explosion at UBB was the accumulation of coal
dust. In fact, MSHA's investigation report contained pictures
of belts that had been rolling through coal dust.
The NIOSH independent panel stated the mine operation did
not and could not conceal readily observable violate conditions
such as float dust accumulations throughout the UBB mine.
And as Ms. Woolsey alluded to in her opening testimony, how
can MSHA attribute the existence of these conditions to
inspector inexperience and resource constraints?
Mr. Main. Yes, I think--and I am looking at two pieces.
One is the conditions that are directly involved in the
explosion itself. And if you start with that and look at the
area where the explosion occurred, and where the fuel was at to
cause that explosion, we have examined three areas.
There is something that we missed in that area that was
part of that explosion.
You know, what I was trying to explain is that in that
area, I didn't see any evidence from any of the reports that I
found that inspectors had walked by an area and did not take
appropriate enforcement action.
As a matter of fact, what I was pointing out is where they
did inspect and what they did find in the critical areas.
One area that is probably the most important is the
question I asked myself. You know, in knowing mines is how did
we have such an explosion right off the tailgate?
And there was no evidence the company had any real
methodology in their post explosion investigation of
continually rock dusting that area.
What we found was that the inspection was made of that area
really happened over a 3-day period, March 9th through the
11th. And we had a ventilation specialist in that area. We had
an entry supervisor and a trainee in that area. And we had an
inspector in that area.
And it all dealt with--that was an area they went to where
they issued an order to close down the mine because of the
ventilation problem.
And this was an area--and let me just give you this
picture. When the inspector showed up to do this last
inspection, here comes the gang of six inspectors into the
parking lot of the Massey Energy Upper Big Branch Mine.
And I think the word that was used was, hell storm,
whenever more than one inspector showed up. It took an hour and
a half for those inspectors to get up to that spot.
And we know that just before they got to that location, at
about--I think it was about 9:48 a.m., the company shut down
the shearer and claimed that they had a problem.
This is according to their records.
It was so convenient for that to happen.
The inspectors arrived at the area an hour and a half to 2
hours, somewhere in that timeframe, after they showed up on the
property, and if Mr. May's instructions that they used to get
was correct, and the area that we are talking about where the
rock dusting would have been visible, where they were out at
the tailgate, is not a large area.
The question everybody has to ask was did those inspectors
spend 3 days in an area tramping over this and see totally
black stuff he didn't do anything with, or was there something
done ahead of them?
And that is what has bothered me all the way through is how
these inspectors could have missed that float coal dust, unless
it wasn't there to be seen. It was masked by throwing some rock
dust on it.
I don't know. I mean that is--when we get to the bottom
of----
Mr. DesJarlais. Okay, let us talk about MSHA's internal
review where they repeatedly cite inspector inexperience in the
District 4 as a root cause of MSHA's deficient inspections at
UBB.
You know, it sounds like you are saying regardless whether
we had experience or inexperience inspectors, this probably
would have been missed. Yet if they were there on the day of
the explosion, they would have caught it.
Mr. Main. Yes, some of the conditions were bothersome that
were identified. But in terms of the conditions that actually
existed.
And the $64 question is--and I think it has to be asked--
did that company do something the day that the last inspection
was made that masked what they were doing?
Mr. DesJarlais. Okay, I am trying to focus on----
Mr. Main [continuing]. You know----
Mr. DesJarlais [continuing]. The inspector inexperience. Do
you agree that the inspectors were inexperienced?
I mean, yes or no.
Mr. Main. Oh, absolutely.
Mr. DesJarlais. Okay. When do you think the MSHA inspectors
will be adequately trained? And are they ready now?
Mr. Main. Well, and let me talk about that, because this
was not something that just happened overnight. I think if you
look at both the reports. And the NIOSH report, I think,
pointed this out as well.
There was a severe staffing problem at MSHA that was
created starting back around 2001, when there was a flat line
budgeting of MSHA, which caused the agency to have to eat
itself, so to speak, by cutting back on FTEs just to be able to
stay at its funding's level.
In 2004, there was a budget cut in the co-enforcement
program that further reduced the staff.
At the same time, you saw a major retirement take place in
MSHA, and it was pretty overwhelming when you look at the
numbers. I think between 2001 and 2006, there are over 1,000
people left that agency.
And the agency had an average of about 2,300 folks. I think
there was 690 some out of about 1,100 that left the coal
enforcement ranks. So you had an agency that was basically
devastated.
Congress made a wise decision 2006. Added new funding which
wasn't realized until 2007 when it was able to start hiring
back up again. But it takes 2 years to get the inspectors
through the training programs.
So just about the time that UBB was hitting--MSHA was
getting its ranks back up to a level that they were able to
start managing it.
The problem is they had a lot of inexperience.
If you look through that same period, managers was leaving
out right and left. We had six different district managers
running District 4 from 2003 to 2006. And that was at a time
when those ventilation records sort of didn't get handled.
And you had at the time of the explosion, management of the
field offices that was changing out. There was three different
managers, field office managers, two of them acting during the
time of the last couple of inspections at UBB, so all this
stuff caught up with the agency.
Specialists were just wiped out to the core, where they
were unable to keep up the specialty work.
I knew at the first part of the review process the IR team
found that there was two ventilation specialists in the whole
district.
This is a district that had over 50 Massey mines. They were
down to two ventilation specialists.
That ramped up to about six by the end, but there is no
question there is an experience problem. There is no question
that the experience losses had to do with both the budget
constraints and the attrition of the agency that left it where
it was at.
Chairman Kline. The gentleman's time has expired, more than
expired.
Ms. Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Secretary, Federal District Judge David Sam noted
recently at a court hearing where during the sentencing of
Murray Energy for two Mine Act violations connected to the
Crandall Canyon mine disaster.
This is going to get me to a question I am going to ask
you. That is why I am going to that.
He said, and I quote him. He said, ``I am outraged because
of the miniscule amount provided by the criminal statute'' in
the sanctions and the fining these criminals from Crandall
Canyon.
So, Mr. Chairman, I have a copy of that. And I would ask
unanimous consent to insert it in the transcript.
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Chairman Kline. Without objection.
Ms. Woolsey. Thank you.
So the Mine Act classifies a willful violation of a
mandatory safety standard as a misdemeanor, even when miners
are injured or killed.
So that is true even when making a false statement under
the Mine Act. And that is a felony only.
So would it make a difference, why would it make a
difference, if instead of these weak miniscule criminal
statutes, we had stronger felonies--whatever you call them
under the--if we treated these endangered miners that were hurt
and willful violations of mandatory safety standards were
treated as a felony under the Mine Act instead of a
misdemeanor?
Mr. Main. I believe the judge expressed his frustration of
his inability to take tougher action where he believes, from
why I have read, tougher action was needed because of the
constraints of the Mine Act.
I think it is pretty straightforward. I think the U.S.
Attorney's office expressed similar concerns of what they
believe that their limitations to bring forward other actions.
And I think it is a classic case, if you have to step back
and take a look at to determine whether or not there are
sufficient tools under the Mine Act to deal with circumstances
like that.
And I will just point back to some of the things that we
are still finding through some of our impact inspections.
You know, if anybody thought that advance notice of
inspections was a piece of history, we are living in a
different world. I mean, that is something we constantly find.
This kind of conduct is so ongoing that it doesn't seem
that there is enough deterrent under the Mine Act to prevent
that from happening.
Ms. Woolsey. Thank you for asking my convoluted--answering
my convoluted question in a way we could understand what I was
asking.
Thank you very much.
The MSHA internal review, Joe, found that in six separate
cases managers at the Upper Big Branch Mine should have been
investigated for willfully violating safety laws.
Why weren't these cases investigated? And is MSHA
conducting those investigations now?
Mr. Main. There is about three reasons, I think, to answer
the question why weren't they.
In addition to the ventilation and roof control specialist
staff, these cuts also affected special investigations
throughout MSHA as part of our special investigations staff
that was cut.
And I think if you look at our testimony, I think there is
a chart in there that shows this whole specialist dip. So there
is a real resource problem of what the inspectors could do.
The other problem that existed, which was raised in the
internal review, was that around 2006, I believe it was, MSHA
was only able to carry out about 83 percent of its inspection
responsibilities. They were shifting people over just to do,
you know, you know, targeted inspections at mines they couldn't
get to.
They were pulling off ventilation specialists and special
investigators and others to go just try to keep the mandatory
inspection program up because they were so short-staffed and
couldn't keep up.
Ms. Woolsey. Well with that in----
Mr. Main. But that is----
Ms. Woolsey [continuing]. With that in mind, do you agree
with NIOSH, their independent panel recommendation, to conduct
four complete inspections each year at underground mines as a
way to reprioritize resources.
I mean, would that help?
Mr. Main. Yes, to finish up the last question. All of those
cases were shipped off to the U.S. Attorney's Office that were
identified.
So those were processed.
To answer your second question, you know, I went to work
before there was ever a Mine Act in this country in 1967. I
don't know if there is anybody else around here that did.
But I remember the first time the federal inspector showed
up at the mine. It was a game changer.
And I can tell you from my own personal experience that the
two and four mandatory inspection program has saved more
miners' lives out of that Mine Act than probably any other
single thing.
If you look at 178 or 278 miners, I think, that was dying
on the job in 1977 when that act was passed, we are down to--
and we hope to get even to zero--but we are down in the high
30s to around 40 today. And I think that had a lot to do with
protecting these miners.
It is like taking to strip that away, I think, is like
taking two brakes off of a car because we don't have as many
car wrecks now. I mean, this is a fundamental piece of the 1969
Mine Act that miners were given.
I think, the most fundamental protection they have.
Chairman Kline. The gentlelady's time has expired.
Mrs. Roby?
Mrs. Roby. Thank you, Mr. Chairman.
Thank you, Mr. Main, for being here today, we appreciate
you taking the opportunity to answer our questions. And I have
a few questions about the MSHA inspectors' work, especially
about the days and the hours that they worked, especially on
weekends.
And unfortunately, I would preface my set of questions by
admitting that for the past 5 weekends one of our nation's
miners has died in a mine, including last Friday night at the
Shoal Creek Mine in my home state of Alabama.
And now that MSHA's internal review found that the agency
conducted spot inspections at the Upper Big Branch at irregular
intervals, and that none of the inspections occurred on a
Saturday. And the internal review also found, and I quote--
``inspectors were contractually required to begin their work
week no later than Tuesday,'' which, quote--``limited the
opportunities for inspecting on Fridays and Saturdays.''
So if I understand this correctly, does this mean that
there were no inspections on Sundays? And you know, is this
issue of not having or having infrequent Friday and weekend
inspections widespread?
Mr. Main. I think to answer the question was there anything
on Sundays. You may be correct. There may not have been. I have
to go back and check that. But I will tell you what we have
done.
We have made a lot of changes since the Upper Big Branch
tragedy. And some of them started pretty quick. And one of
them, you know, I directed my staff, we are going to do a
better targeting of the problem mines that are out there, and
approach these problems differently.
If you look at the impact inspections that we do every
month, a lot of those are done on off shifts when they are
least expecting MSHA to show up. And at a time for capturing
the phones to prevent the mine operators from changing the
conditions underground, prevent advance notice, so that is a
tactic that we are using more readily now.
The agencies have had to shift their personnel to address
that. But they are.
And you are right about the past 5 weekends. We have wound
up, and you start wondering are we so much now on the weekends,
we are shifting some of the, you know, some of the activities
to a time they still don't think we are going to show up. I
don't know.
But in three of those, I believe, they were foremen that
died, in these weekend deaths.
Now, we just put alert out to the mining industry this past
week to get them to focus on that as well. But the short answer
is that we have changed the way we do business. We are focusing
more time on the off shifts.
We are plowing through both the data and the human
information we have to figure out which mines do we really need
to be at more often. And at times when they least expect us to
be there.
And I think that folks could pretty much realize that there
is probably going to be even more weekend inspections at mines
across the country.
Mrs. Roby. That is good to hear.
And I also understand that you were involved in the Jim
Walter's mine investigation in Alabama.
Mr. Main. Yes.
Mrs. Roby. And during that investigation, MSHA discovered
that the mine operator essentially kept two set of books. And--
--
Mr. Main. There was a problem that dates back that far,
yes.
Mrs. Roby. Right. And so I understand that the
investigation at Upper Big Branch also showed that Massey was
keeping two sets of books by illegally reporting hazards in the
coal production report.
And so the question is given your experience at Jim
Walter's mine in Alabama, what are you doing? And what will you
be doing to ensure that mine operators are recording hazards in
the official examination books rather than these, quote--``two
sets of books?''
Mr. Main. Yes. I would say that if I had been assistant
secretary back in 2001, we would probably have taken a more
aggressive action after that to not be talking about it so much
in 2010.
Having said that, there are a number of things that we are
doing, and there are things that we were asking Congress to
take a look at.
We have pretty well made this clear to all of our
inspectorate staff about what is going on. There is absolutely
no problem for an operator to keep a set of books that lists
hazards, as long as they put them in the required books.
And that is one thing I want to make clear. What we were
finding at Upper Big Branch was that they were listing hazards
in their production books. They weren't in their routine books.
This is conduct that you have to get into the books to
find. This is conduct that--you know, we don't have the powers
to do subpoenas, for example, to go in a demand those kind of
records, just something to think about.
But our inspectors are alert to the fact that this is a
problem. We have made them totally alert to the fact that we
need to be doing a much better job of looking at the
examination books.
That was a failure that we found that Upper Big Branch that
the inspectors were not as focused on what was actually in
those books the way they should have been.
So with the additional attention, the notice has been given
to the mining industry, we are using all the tools we have. But
we could use a few more.
Mrs. Roby. Thank you, my time has expired.
Chairman Kline. I thank the gentlelady.
Mr. Andrews?
Mr. Andrews. Thank you, Mr. Chairman.
Mr. Chairman thank you for calling this hearing and the
seriousness which I think all the members are approaching it.
I think for 29 of our fellow citizens we have all engaged
in an inexcusable failure. And I would start with us.
I think that we failed to give prosecutors the tools to
convict people of serious offenses and have sufficient
punishment when they do. I think it is really outrageous that
some of these offenses that were involved in the Massey
prosecutions were not felonies.
And we need to fix that.
I think we have a responsibility for not giving MSHA all of
the tools and resources and personnel that it has needed over
time. And I think it is our responsibility to fix that.
Mr. Main, I know the record is still being developed. But I
think a fair statement is that some of the inspectors from MSHA
failed to catch things that really can't be written off for
lack of experience or lack of personnel. They just didn't do
their jobs very well.
And I think there should be some consequences in those
cases.
And certainly at the root of this problem is absolutely
deplorable, criminally irresponsible behavior by a mine
operator. And I know there are vigorous prosecutions going on
as we speak with whatever tools we have given the prosecutors.
I think obviously our focus should be on finding out what
happened in this senseless loss of 29 lives. But our focus also
ought to be on preventing something like this from happening
again.
And one of the things I am confident that you are doing is
to think about how you train and how you supervise and how you
manage the people who work for you. And I will leave that to
your discretion.
But I do want to take a look at whether we have given this
agency that you run the resources and the experienced personnel
or not that we should.
And it bears mentioning that in 2001, we had spent $122
million to run your agency. By 2006, it was down to $117
million, which in real dollar terms is about a 15 or 20 percent
cut.
And not coincidentally, and I would like that chart
[KB1]that was just up to be back again. What happened during
that period of time, it looks as if many of your experienced
inspectors, which is represented by that green--by the red
line, the declining line, that the number of experienced
inspectors you had, the average experience dropped
precipitously, as I understand it, from about 12 years of
experience to about 5.
Why were experienced people leaving the agency during that
period of time?
I know you weren't running it. But I am sure you have
talked to people.
Why were experienced people leaving the agency during that
time?
Mr. Main. In the period of?
Mr. Andrews. This would be the period from say 2002 to 2006
or 2009.
Mr. Main. I can't speak for the motives of the folks, why
they left. But there was a large number of employees that were
retirement eligible.
You know, why they decided to exercise that--I mean, that
is something that I think you would have to ask them.
You know, a couple of other items that you raised too. One
is, you know, there is absolutely--could we have done better.
There is absolutely no question about that. And we are on a
path to really just take a step back and fix the problems in
MSHA.
And we are not taking the same approach that was done in
the past internal reviews because I have said from the outset,
if we do the same thing the last folks did----
Mr. Andrews. Yes----
Mr. Main [continuing]. We are going to compound the
problem.
Mr. Andrews. I know you are not saying--and I don't believe
that simply spending more money on a problem like this works.
But I sure do think that spending less, then it may exacerbate
the problem.
The budget that is going to be under consideration on the
House floor probably this week, if you take the projections
across the budget, if you prorate them, which they may or may
not do in the appropriations process.
If you prorate them, you would have 5.4 percent less money
to operate on this coming year than you have right now.
And if you prorate these for 2014, you would have 19
percent less than you have to operate on right now.
What impact would that have on your ability to protect
these miners?
Mr. Main. I think take a look at the IR report and see what
they found, what the last impact of that was. And I think you
could pretty----
Mr. Andrews. What does it say?
Mr. Main [continuing]. Pretty well predict the future. You
cannot--if you expect to have an effective enforcement agency,
you have got to pay for it.
I think it is that simple.
And I think that in terms of the lesson that have been
learned from the Upper Big Branch is that if we could all go
back and redo history through 2001 through 2006, we would
probably all agree to do that.
And having said that, I think it is a step that we don't
want to take in the future to go down that same road.
Mr. Andrews. Thank you, Mr. Main. Thank you, Mr. Chairman.
Chairman Kline. I thank the gentleman.
Dr. Roe?
Mr. Roe. Thank you, Mr. Chairman and thank you, Mr. Main.
And to start with, just to offer my sympathy to the
families, obviously the 29, plus the friends, acquaintances and
so forth of this horrible tragedy.
And it seems to me that it was a perfect storm. It was an
unscrupulous company that wasn't following the rules. And MSHA
who didn't really inspect those or follow those rules very
carefully themselves.
It is absolutely a perfect storm had this tragedy happen.
I agree with you, the MSHA didn't cause the explosion. They
did not do that.
And in reference to Mr. Andrews' chart that he just had up,
just for the record, the chart does not show the experience
that MSHA folks are required to have before they come to work
for MSHA.
Mr. Main, as you know, your agency received significant
funding increases over the last 6 years, funding which has
increased from $278 million in 2006 to $373 million this year,
a 34 percent increase over 6 years.
With respect to funding dedicated specifically to coal
enforcement, funding levels increased from $117 million in
fiscal year 2006 to $165 million in fiscal year 2012, a 41
percent increase over 6 years.
In 2010, the late Robert Byrd, Senator from West Virginia,
said of this MSHA and the Upper Big Branch disaster, ``I am
perplexed as to how such a tragedy on such a scale could happen
given the significant increases in funding and in manpower for
the MSHA that had been provided by this subcommittee.''
Senator Byrd went on to say, ``I don't believe it was
because of lack of funding. I don't believe that MSHA lacked
enforcement authorities. I don't believe that.''
Without objection, Mr. Chairman, I would like to include
Senator Byrd's opening statement from a Senate hearing held on
May 20th, 2010 into this records hearing.
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Chairman Kline. Without objection.
Mr. Roe. I thank the chairman.
Now, Mr. Main, your agency did in fact receive increased
funding every year for the last 6 years did it not?
Mr. Main. Yes, but I think you had to put this thing in
context and look at the investigation findings which--the
agency was depleted to probably its lowest point about 2006.
In 2006, that is when Congress made a decision to add more
resources.
Those resources by the time it went through the process
things have to go through, to where the agency could start
hiring up was in mid-2007.
In mid-2007 as the agency started to hire, the amount of
time it took for those inspectors to go through the training
process was about 18 months to 2 years.
Now keep in mind, you still have people retiring that was
coming out of the system as well.
But the bottom line is, you know, as far as the healthiness
of where we are at in these later years, and having more
stability and having more people experienced----
Mr. Roe. Let me interrupt you just a second.
As a physician, we have young doctors that come out that
are fully trained. And when they are fully trained, they are
expected to do the same job that a senior physician like I
would do. So I don't think that is an excuse.
When you are trained up to do the job, you ought to be--we
can't use that as an excuse when someone does a cesarean
section or whatever, or a cancer operation. You are either
qualified to do it or you are not.
Mr. Main. I do look for the older doctor myself. But that
is okay.
Mr. Roe. Well, let me--a second question. And I might do
the same.
Do you agree or disagree with the statements made by
Senator Byrd less than 2 years ago about this very tragedy and
the actions of your agency?
And if you disagree, why do you disagree?
Mr. Main. No, I think--yes, I think what the senator and
probably a lot of folks were of that belief until folks really
had a chance--unfortunately the senator didn't get to live long
enough to see this all the way through.
But to see how much the agency was shorted. And how long it
took for the money they put back in to have a real effect.
At the time of the Upper Big Branch tragedy, of the lead
inspectors that was at Upper Big Branch, I think five out of
six of them was hired in this latest class of 2006 forward.
If you look back at 2007 and look at the make-up of
District 4 and the agency, 33 percent of District 4 and the
agency were trainees----
Mr. Roe. Okay. Let me ask one question before you--I think
my time has almost expired.
It would be egregious findings there. Could you have just
shut this mine down? Just said, look, it is closed. It is too
unsafe for miners to go in there.
Mr. Main. On 48 occasions, MSHA went in that mine in 2009
and shut them down using the full measure of the law they had.
And the authority under the law which says that once you
correct the problem, you can put it back to work.
Okay. And the mine did that.
This is an issue that has been talked about. But there is
no silver bullet. We have asked Congress to consider that.
We have tried to come up with ways to have a holistic way
to deal with the mine that is seen as an immediate danger. We
use that at the Freedom Mine.
In 2010----
Mr. Roe. They didn't shut down----
Mr. Main [continuing]. It took us 3 months to get there.
Mr. Roe. They didn't shut it down and disaster occurred.
That is a fact.
Chairman Kline. The gentleman's time has expired.
Ms. Fudge?
Ms. Fudge. Thank you very much, Mr. Chairman, and thank
you, Mr. Assistant Secretary, for being here today.
This may seem a little repetitive, but I want to be clear.
The first question, Mr. Assistant Secretary, is if you look
at MSHA's fiscal year 2013 congressional budget justification,
it provides that MSHA is vigorously pursuing policies and
procedures to ensure miners are aware of their rights to report
hazards without fear of discrimination.
Can you tell me what you were doing in that regard
specifically?
Mr. Main. I am sorry. I missed the last part of your
question. I apologize.
Ms. Fudge. It indicates that you are pursuing policies and
procedures to ensure miners are aware of their rights to report
hazards without fear of discrimination.
What are you doing in that regard?
Mr. Main. Well, there is a number of things that we have
done. And particularly after Upper Big Branch, and particularly
after lessons--the information from the hearing that this very
committee held in Beckley, West Virginia.
We developed a lot of new training programs. We are getting
information back out to the miners. We are getting more
information to miners about their rights which are coal
enforcement and metal and nonmetal enforcement program do as
they reach the miners at the mine.
We have beefed up our response to miners who file
complaints. We have an obligation to protect them when they do.
We beefed up protection particularly for those who are
fired for speaking up about the safety rights if it is a
protected activity in the Mine Act.
And we have considerably increased the number of cases that
we now take to the Review Commission for temporary
reinstatement.
So there are a lot of things that we are doing with regard
to the miner voice issue to--and we think this is something
that again was part of legislative processes that was discussed
last year and contained in some of the bills, that we really
think is something that needs to address giving miners
additional protections beyond what they have now.
Ms. Fudge. And that is what I was trying to get to. To be
sure that they do have the protections they need, because I
think that that contributed to the problem.
Mr. Main. The last complaint--everybody saw the numbers
that came out of here as far as what the violation issue was.
The last complaint we received from that mine was in 2006,
4 years prior to the explosion. And that is a sign that we
really need to figure out a better way to give miners a voice
to help them.
Ms. Fudge. Thank you.
And the other question you touched on just briefly in--I
think when you were talking to my colleague, Mr. Andrews.
Do you believe that MSHA should have subpoena powers?
And do you think that had there been subpoena powers, it
could have changed the outcome of the Upper Big Branch case?
Mr. Main. I can't--I don't know if it would have changed
the history back, because I don't know how it would have been
utilized. It would have been a tool that could have been better
utilized.
This is something that was in the legislation. It was
sponsored over the last couple of years, and something that we
supported.
I think if you look at the history, we had a number of
witnesses that exercised their Fifth Amendment rights during
Upper Big Branch tragedy.
But even to get to that spot where they could be
subpoenaed, we had to work with and utilize the State of West
Virginia's subpoena power to even get to that point.
We don't have that.
Ms. Fudge. Thank you very much.
Mr. Chairman, I----
Chairman Kline. Would the gentlelady yield----
Ms. Fudge. I would yield to the ranking member.
Mr. Miller. Absent the subpoena power and absent some kind
of whistleblower protection, Mr. Main, what you described here
this morning is just a continued cat and mouse game where
people continue to warn mining companies that inspectors are on
the property after Upper Big Branch. And they continue
apparently to cook the books.
And so they continue along because basically they are
immunized against the downside of that because Congress hasn't
given you subpoena power. And workers don't have worker
protection.
So we are right back where we were before.
All of the internal reviews and the rest of that, you are
still citing people--you just cited somebody 32 times. You had
to grab the phones and that on warning people that the
government is on the property.
And in answering the question here, yes, but the books
continue--two sets of books continue to be kept. But we can't
get to them because we don't have the subpoena power.
So as long as Congress is going to insulate the mine owners
from irresponsible and illegal behavior, I don't care how many
people we give you to staff up. You are going to be playing on
the short end of the field.
And that is just not acceptable. You can't sit here and
continue to lament the 29 deaths and the deaths that went
before them and the deaths that are continuing to come, and
then suggest that somehow you have got to do this with the
blindfold and one hand behind your back.
I mean that is where--at the end of the day--that is what
you are describing to us.
Mr. Main. I can tell you this. With regard to the question
that was asked about the two sets of books, we can go ask the
mine operator to produce books. It is not required to be
legally maintained under the Mine Act. And they can say no.
And what we do beyond that is what we are creative enough
to do. We do not have the ability to demand those through such
a subpoena power.
Chairman Kline. The gentlelady's time has expired.
Mr. Kelly?
Mr. Kelly. I thank you, Mr. Chairman.
Mr. Secretary, thank you for being here. I don't think
there is anybody on the dais today that would question the
desire to make sure that people were safe all the time.
And unfortunately though, change doesn't usually take place
unless there is a tragedy or a crisis. Now if I understand
correctly, your inspectors have to have a knowledge in your
policies and procedures of 4,500 pages of inspection.
Is that right?
Mr. Main. Probably more than that. But that is probably a
fair number.
Mr. Kelly. Okay.
So how would you change what you have now? And I--listen, I
understand about spending more money. But throwing money at a
problem----
Mr. Main. Right----
Mr. Kelly [continuing]. Without having a definitive plan of
how you are going to fix it, usually isn't a fix. It is just--
--
Mr. Main. Yes----
Mr. Kelly [continuing]. A waste of money. What would you do
differently?
What could you do differently?
Mr. Main. Well, yes, what we are doing differently--here is
the way I view life.
I think that what has happened--and if you look at the
number of the past tragedies, we have taken an inspection
procedure and process that was pretty challenging for an
inspector to do, and as a theory I use, we expect him to do
1,000 things, they can do 750.
And after Sago and after Jim Walter's and after Darby,
after Crandall Canyon, there was a number of different policies
layered on top of that.
I think the investigation or the internal review team came
up with about 200 since 2004 that was layered on.
What I said back in July of 2010, I am not doing this. I
put together a crew to go back. We are rewriting the entire
manual from base zero. We are cleaning out a lot of the
controversy.
We are making sure that all these internal reviews, and all
these accountability audits, get placed into there in a very
clear and straightforward way, so an inspector knows exactly
what they are supposed to do. And we can have a greater
clarity.
We have held up the completion of this until we are
finished up the internal review, because I asked our folks go
to the root of this. We have got to figure out what all the
problems are here if we are going to fix them.
Mr. Kelly. Yes.
Mr. Main. So I can tell you that we are rewriting the
entire inspection procedures----
Mr. Kelly. Yes.
Mr. Main [continuing]. To clean up, you know----
Mr. Kelly. Yes, and I understand that. I have been through
several mines back in the area that I represent. And I have got
to tell you, part of the problem is--and I don't know the
experience that the people that you have going on inspecting.
But when people get cited for having a fluorescent light
that is not the proper height above the desk, or not having a
cover on a trash can, or not having two sets of chocks under
truck wheels, and things like that----
Mr. Main. Right.
Mr. Kelly [continuing]. You start to wonder if it is really
a loss prevention, if it is really a tragedy prevention.
Sometimes we get to the point where we are placing too many
things in the same level. Obviously, if I am understanding with
Upper Big Branch that there were 48 citations, now, I know you
don't have subpoena power, at least I am understanding that.
What would your next----
Mr. Main. Well then----
Mr. Kelly [continuing]. Place would have been. I mean, I
can't believe that if we know something is wrong, if we know
these people are bad actors and if the people that work for
them----
Mr. Main. Yes.
Mr. Kelly [continuing]. Are complicit in hiding things from
mine inspectors----
Mr. Main. Right.
Mr. Kelly [continuing]. Then I don't know how you clear
that up.
I mean, again, it comes down to if people don't have that
in their heart to stand up and do it. And the question about
what are the whistleblowers----
Mr. Main. Right.
Mr. Kelly [continuing]. Protections?
Mr. Main. Right.
Mr. Kelly. But certainly, after 48 citations, somebody
would have been able to go to somebody in the Department of
Justice and say, we have got a bad actor. We have got to shut
these folks down.
Mr. Main. Easier than it seems.
If you look at the history of the Mine Act up until Upper
Big Branch, I can tell you the tool of choice for this agency
was the 104(d) orders, which allowed them to quickly go in--
this is a company that didn't pay their fines. So fining them,
you know, $1 million a day, and by the way, one longwall
running off of Upper Big Branch in a shift produced about $750
or $700,000. That is $2 million a day. So if you even give them
a flagrant--I mean, that is--run that long wall, what, a fourth
of the day.
This was a company that did not pay its fines. This is a
company that challenged the law. And----
Mr. Kelly. But----
Mr. Main [continuing]. And----
Mr. Kelly [continuing]. But that is my point. If you know
this is going on and they habitually do this--you have to be
able to go to somebody up the ladder to say, listen, we have
got to stop this. This is a bad actor that we have got to take
out.
Mr. Main. Today we have instituted a number of tools to
target that. But I am going to tell you, we are not there yet.
The tools that we are using is these impact inspections to
deal with mine operators before they get too far out of
control. The potential Pattern of Violations process that
measures their--both their safety and their compliance record
and puts them on a program, the potential Pattern of Violation
Program.
Those are two tools that I think have been very effective
post UBB.
But I will tell you, if you are still looking for that
magic bullet, it is not there.
And what we did was, a mine in East Kentucky, Freedom
Energy, that had a record similar to Upper Big Branch, we went
after them to try to create a tool which was out of Section 108
Injunctive Action. It took us 3 months to get there.
You know, so I think that we need to relook at creating a
better tool that gives us a swift ability to go in, as you say,
if we had looked at UBB today, what could we do to go in and
shut them down when they are that bad.
We still have a gap to get us there. We are using the
impacts, the 104(d)s, the other enforcement tools.
But we are still short.
Mr. Kelly. Okay.
Chairman Kline. The gentleman's time has expired.
Mr. Kildee?
Mr. Kildee. Thank you, Mr. Chairman.
Mr. Main, I have been serving on this committee for 36
years trying to make safety a more important issue for our
miners.
When I came on this committee 36 years ago, Carl Perkins,
whom we affectionately called, Pappy Perkins, was chairman of
this committee.
And we had a hearing on mining safety. And I was shocked
what I heard then. But I am shocked 36 years later of what is
happening.
I could recall the--one of the representatives of the mine
owners testify how safe, and how safety was such a high
priority in their mines.
And you still get that same testimony from many of the
owners who have come here. I can't think any who didn't.
But I can recall one time the person went so far that Pappy
Perkins, or Carl Perkins who was such a kindly gentle person,
finally said, when I was a child my daddy put me on the back of
a buckboard and took me over to the next hollow for the funeral
of my cousin who was killed with others in one of your mines.
That is 36 years later. And I feel that we should have made
much more progress in 36 years. We fought wars in that time. We
spent money here and there.
But 36 years later I still hear the same stories and the
same attitude very often of the owners of trying to get by as
cheap as they can so they can make greater profits.
What area should we strengthen to make sure that their
banality, their stupidity, is brought into rein? Stronger
regulation, a more stringent enforcement, greater penalties,
where would you emphasize the greatest effort of this Congress
in working with you to make sure that these people really put
in mind the safety of their workers?
Mr. Main. You know, I firmly believe that there are a
number of mine operators in this country that do manage their
systems to have systems in place to operate under the Mine Act.
That doesn't mean that they always are totally successful
with that. But I believe that, you know, many mine operators
try to do what is right.
And I believe that there are those that just do not. And I
think if you take a look at our impact inspection list, mines
that have shown up on a potential Pattern of Violations, those
are showing you some of the mines that are operating outside
the mainstream.
Dealing with some of those mines--and I am just going to
start down the list.
I do believe that there needs to be more respect of the law
and a greater fear of the penalties that exist to deter them
from continuing to do the conduct that we are finding with the
advance notice, and with some of these mines still operating
without enough curtain up to control methane that could have
another coal mine dust explosion.
On a regulatory front, we have the list of recommendations
from both the--acts investigation internal review team. We are
going to take a hard look at to figure out what it is that we
need to do better there.
Administratively, I am going to tell you, we are doing a
lot of things differently here to make sure that we have the
best inspection agency that the miners should expect and money
could buy. And there is going to be a lot of changes that we
have already--that has been laid out in the internal review
reports that we are working toward to correct.
But at the end of the day, I think that, you know, the
legislation that has been sitting here on the Hill, that has
different pieces to address the issues we have talked about
today is something that this Congress needs to take a look at.
And I think too the issue that was raised here, we have got
to be--you cannot undercut this staff and this agency to the
point that you are scrambling with trainees trying to just get
into mines, let alone inspect them. And expect to have a
competent inspection program.
And going forward, I think that is something that we really
have to take a good look at----
Mr. Kildee. And I say that I really think that through the
lord is the beginning of wisdom. And I think that put a little
fear that the government means business, that we just don't use
ink.
We put our spirit, our beliefs and the dignity of every
human being when we write those laws.
Chairman Kline. The gentleman's time has expired.
Mr. Walberg?
Mr. Walberg. Thank you, Mr. Chairman and thank you, Mr.
Main, for being here.
I would like to highlight an issue related to miner
training cited in the internal review that seems startling to
me.
Now in my getting up to speed over the course of this past
year, I have had the opportunity to view mining operations in
North Dakota, surface mining. And I have had the opportunity to
go 1,200 feet below Detroit and see the salt mines, which is a
totally different ballgame.
Look down 1,200 feet into an iron ore operation in
Marquette, beautiful area of our state, and then to be with you
in your home area, in fact to see your home. But in a coal mine
800-900 feet below and eight miles back into that longwall.
I know that I am not a miner. And I know you are a miner.
And you understand that.
And I know that you weren't around leading when this all
happened.
But as I look at the record, Upper Big Branch was operating
under a petition for modification to permit mining through any
oil and gas wells. The petition was granted, according to
record, on October 16th, 1995.
And the mine was required to submit a training plan 60 days
after the petition became final.
As I understand it, that plan would have included initial
and refresher miner training requirements, so forth and so on.
But the internal review found that the training plan was never
submitted. And the requirements were never part of the mine's
training plan when the explosion occurred.
Director Main, how did that happen?
Mr. Main. I think if you look at--one of the things that
you will find in this internal review that you are not going to
find in other internal reviews is really just looking back
through everything that we could find that was wrong here to
get it fixed.
I don't think there is any other internal review that
looked back beyond a couple of years.
That was one of the things we asked the folks to go back
and take a harder look, they found. In 1995 apparently, they
didn't implement the plan. I mean, I think it is pretty much
that simple from all the----
Mr. Walberg. Did MSHA ever demand the plan? Did you find--
--
Mr. Main. I don't think there is--I believe that somehow in
1995 that provision was put in a petition modification. And
apparently we could find no follow up to require the operator
to do what--now I don't know if there is a plan put in place or
not by the operator. But there is none that was incorporated
that the----
Mr. Walberg. That MSHA knew----
Mr. Main [continuing]. They found.
Mr. Walberg. I guess then moving forward, we don't live in
the past. We look at the past to plan for the future.
But I guess my question then comes to you.
Does MSHA intend to undertake the comprehensive review of
all mining plans to determine that this isn't a widespread
problem? That what happened at Upper Big Branch, and the fact
that this training wasn't done, requirement wasn't in place,
and MSHA apparently didn't even ask for it, I mean, is that
widespread?
Are we worried that there are other mines operating right
now who have a similar situation?
Mr. Main. Well, the problem that I think that we face as an
agency was that there was a lot of policies and procedures that
was put in place. And I will use that along with the plans that
somehow a lot of communication sort of broke down somewhere in
the back years in this agency.
And I think there are different reasons for that. One as
far as policies, they did centralize the whole policy review
process.
On the training programs, we may or may not find others
back in those years. But what we are trying to do is start from
fresh and just identify everything that we can. We are training
everybody to those things.
As a matter of fact, the findings of the internal review
team of the things that came out of it, we have already had a
set through with all of our District 4 and District 12 staff
and the district managers. And we are getting----
Mr. Walberg. But are we looking for this problem right now?
Even as we are training for it, are we looking for it that
there might be some ready to explode?
Mr. Main. As far as that kind of training plan, I will tell
you we will go back and look to see if that is something that
we are looking at right now.
I know we are looking at a ton of things. And I will make
sure that that is on the list of things that we are looking at.
But one of the things I would like to say is that when I--
this is the first committee I have testified before when I
became assistant secretary. I will never forget that.
It is an awesome experience for those who have never had
it, to take your first trip to the Hill.
And, you know, when I was here, one of the things I was
laying out is sort of like the path that I was going to take
with this agency. And this was about, I think, what, 2 months
before Upper Big Branch hit. It was in February of 2010.
And some of the things that I had talked about at that time
was the fact that the day I took this job, 55 percent of the
MSHA inspectors that I had had 2 years or less inspection
experience, and 38 percent of the metal and nonmetal inspectors
that I had had less than 2 years or less of inspection
experience.
And one of the things that I decided to do fairly quickly
was to bring in every one of our field office supervisors, set
up a training program to train them on how to be a supervisor,
because a lot of those had left as well and a lot of them were
new, and to be able to manage the inspection enforcement
program.
We had complaints about consistency. And I think rightfully
so, that was coming from The Hill. But to figure out a way to
get quickly those who managed our whole enforcement program
under control.
We had that put in place and we had to actually--was
kicking off the first training right as UBB struck.
The second thing is to take a look at how we are training
our folks and how we are identifying the core--the auditing.
Are we doing enough self-audits in this agency to find the
things like you are talking about.
Chairman Kline. I am sorry. The gentleman's time has
expired.
Mr. Tierney?
Mr. Tierney. Thank you, Mr. Chairman.
I will just yield my time to the ranking member.
Mr. Miller. Secretary Main, Mr. Kelly was discussing with
you the fact that there were 48 shutdown D2 inspections,
shutdowns of Upper Big Branch Mine.
There are 52 weeks in the year. Forty-eight of those
apparently ended up with the shutting down order at some point
in this mine.
And then he said to you, there must be something you can
do. And you started to lay out the idea that you could go and
seek and injunction. Which when you did it in the case of the
Freedom Mine, it took you about 3 months.
If this mine continued to operate under its consistent
pattern, that would be another 12 violations roughly, that
warrant an unwarrantable safety hazard and justify shutting
them down.
So that doesn't look like a very good remedy if you are a
miner that you are going to get to spend another 3 months in a
mine that has this track record, while you go to see if you can
put together enough of a finding to have an injunction.
Mr. Main. Yes.
Mr. Miller. So once again, we are left here because of some
glitch in the law, some failure to get from one point to the
other.
The miners are left in an unsafe condition--working in an
unsafe condition.
Mr. Main. I am here to tell everyone that we are using all
the tools that we can amass under that----
Mr. Miller. That is my worry. You have used all the tools--
--
Mr. Main [continuing]. And----
Mr. Miller [continuing]. You still can't get to the end of
the story where an unsafe mine is either permanently shut down
or something happens.
Mr. Main. There is no silver bullet that we have in the
Mine Act----
Mr. Miller. I don't want a silver bullet, I want an
effective tool.
And you have made it very clear you are working very hard
to see how you can piece together the authorities you have
under the law.
But it appears to me in your response that you can't get to
where we would need to provide that protection because you
don't have subpoena power in the case of cooking the books. And
you don't have enough authority to keep a mine from racking up
48 D2 citations.
Mr. Main. There is a point of which we lack the ability to
go in and shut down a mine because of its overall conditions.
We can use all the tools as identified in the law to
selectively, and with regard to the specific issue at hand, to
take enforcement action.
But I think what you are describing doesn't exist.
Mr. Miller. You issued the results of your inspections.
This was in January. And in the release here you refer to Coal
Creek mining.
And you said that the agency seems--secured and monitored
the phones during the inspection, issued 32 citations, 12
orders which subsequently shut down the mine.
MSHA issued an imminent danger order when an inspector
observed a coal pile five feet high, 10 feet in diameter on
fire approximately 23 feet away from explosive storage magazine
outside the mine.
Mr. Main. That is the conditions they found.
Mr. Miller. That is the conditions they found. In that case
when you secured the phones, did you have the finding of prior
notice or not?
Mr. Main. On that one, I am not sure. I would have to go
back and take a look at.
Mr. Rahall. Would the gentleman yield?
Mr. Miller. But we have an inherently dangerous process
going on here.
And somehow we can't get to the remedy.
Mr. Main. Yes.
Mr. Miller. Because you just keep going through shutting
down, opening up, shutting down, opening up, shutting down,
opening up, and you continue to find these unwarranted hazards.
Mr. Main. Yes.
I believe that there is a mine that I identified in the
testimony that I presented. It was a mine that we did a number
of impacts inspections at. I think about seven.
Mr. Miller. Okay.
I will yield to Mr. Rahall.
Mr. Rahall. Very quickly in response--to follow up on the
gentleman's question.
Could the operator of this mine shut it down? Could Mr.
Blankenship have shut it down?
Mr. Main. Mr. Blankenship could have shut this mine down
any moment that they decided to do it. They could have decided
not to have provided advance notice of the inspections
underground to the mining operator, or to the mining personnel,
so we could have had a fair view of the conditions that are
there.
But yes, we all have to understand, it is a mine operator's
responsibility to run these mines safely and to have them in
place, programs and procedures to protect the miners.
Many of them do every day of the week. Some don't. And some
like Upper Big Branch really the miners pay just a hell of a
price, excuse my French, whenever they don't.
Mr. Miller. So whatever number, but you point out, whatever
number of shifts that mine operator, that irresponsible mine
operator, can get in between the next shut down, in this case
you said you thought it was worth about $700,000 a shift to run
the longwall.
Mr. Main. Well let me just say this----
Chairman Kline. The gentleman's time has expired.
Mr. Rokita?
Mr. Rokita. Thank you, Mr. Chairman, and thank you, Mr.
Main, for being back here today.
I want to focus on the internal review. And it seems like
the tone and breadth of that document almost intentionally
focused on District 4, almost shielding headquarters from any
culpability in this. I mean it is not until page 193 that the
report even speaks directly to headquarter deficiencies.
Do you have a comment on that?
Mr. Main. Well, I think the way policy is constructed, it
has the focus of the investigation basically starting with the
mine and working itself back.
And this is a process that has been in place, I think,
since about 1992 in terms of the process for conducting----
Mr. Rokita. Yes. The problem, I am seeing and reading in
the report though is that with the sheer magnitude of the
identified shortcomings, it can't be limited to just District
4.
And before this happens again----
Mr. Main. Yes.
Mr. Rokita [continuing]. Like the other tools that you said
you are starting to use, I would advise and ask that you look
into restructuring how you are doing these reports.
Mr. Main. We will. I think that is a valid recommendation.
And I think some of the findings from the report itself, some
of their findings from the NIOSH report, really gives us an
understanding.
We really need to go back and retool the way that we do
internal reviews
Although having said that, I think that the internal review
team was instructed to go overboard in terms of not being
restricted to the balance of that. And really figure out what
went wrong here.
Mr. Rokita. Thank you.
Also on page 66 of the report, it states, quote--``the
decision not to pursue 1610(c) investigations at UBB was driven
by resource considerations rather than the merits of the
case.''
Were you aware of this? Was headquarters aware that that
was the reason that this happened?
Mr. Main. Well, I doubt if they were because basically what
happens is the district inspectors would be the ones would
normally identify the cases. They would then transfer that
information over to the special investigations branch.
The special investigations branch then would assess those
and deal with the district in terms of what their
recommendations were.
Mr. Rokita. So you don't know.
Mr. Main. I don't know how far, but I just sort of believe
that what was happening was there was determinations made about
what they could or couldn't handle.
And keeping in mind out of all six of those, I think it was
a thorough review, the internal review found that six of those
was notorious. I am not sure then on a normal day that the
district staff would have really identified all six of those.
But in this particular case, I am not sure that they went
beyond the discussions between----
Mr. Rokita. Thank you.
This hearing focused on some short-term inexperience. And I
want to say that on page 78 of the internal review there
appears to be an 11-year gap between an agency requirement of
the operator that new elements be included in the training
plan.
And these were never included. And the agency failed to
notice this during an 11-year period.
So it seems to me this is more than just near and short-
term inexperience.
Mr. Main. Yes, I think that there is a lot of things that
played in--it is just like the 1995 plan. I can't explain why
that was not, you know, implemented.
Some of the things that----
Mr. Rokita. It just seems the headquarters and the district
missed some of this for far too long.
And again, I would appreciate going through--I used to
run--I used to be a regulator. I used to be running one of--
you--not in the coal industry, but for other industries.
Mr. Main. Yes.
Mr. Rokita. And these would be warning signs to me to go
back and review processes.
Mr. Main. Yes.
Mr. Rokita. Let me yield the rest of my time to Mr.
Walberg.
Mr. Main. Okay.
Mr. Walberg. I thank the gentleman.
Going along that train here, assuming the fact that--or
knowing the fact that we had a bad actor and operator of that
mine, who may indeed have covered certain things so that your
inspectors couldn't see them, yet the internal review found
many instances where MSHA inspectors observed serious problems,
but did not issue a citation.
For example, District 4 personnel inspected the tailgate
entry of the longwall on four occasions, but never cited Massey
for failing to install the required level of roof support.
And on page 83, the panel concluded, and I quote--``with
the proper quantity of air there would not have been the
accumulation of methane, thereby eliminating the fuel sources
for the gas explosion.''
My question is how can we be confident inspectors are going
to find these failures in the future?
Mr. Main. Yes. I think with regard to both of those, I
provided some insight of those a little bit earlier.
On the tailgate issue, there is actually only one
inspection that took place involving the roof supports. The
other inspectors who were there is over a 3-day period when
they went in and shut down--that was a--I don't know if you
caught that part of the story or not.
But when the inspectors arrived at the mine site with the
carload of inspectors, went underground and issued a closure
order over the ventilation system. And that is what they were
there looking at. Then trying to deal--and they had the mine
down actually for 3 days over a ventilation issue.
So, you know, those were not all--I think there are some
differences about what may have been in the internal review
report and what was in the other report.
As far as the----
Chairman Kline. The gentleman's time has expired.
Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman. I appreciate your
courtesies and that of the ranking member in allowing me to be
part of this panel today.
The UBB mine does sit in my congressional district, in
fact, in my home county. So the disaster that occurred on April
5th, 2010 hits very close to home on multiple fronts.
Beyond knowing with certainty, as we now do, what caused
that tragedy, I do ask for two things of this committee.
First, that the committee look responsibly at what the
Congress should do to prevent another UBB. And then just do it.
If that means legislation, and I believe it does, then
legislation should be passed.
I do not excuse MSHA's failures, but the Congress should
not withhold effective lifesaving legal authorities from the
agency as some kind of penalty. Because ultimately the only
people penalized by that cockeyed approach will be our miners.
Second, I ask that whatever action is taken ensures that
bad actor company executives, and they are a very minute
minority, who make the decisions and set the policies that lead
to tragedies like UBB, are no longer able to hide from the law
or to exploit the weaknesses of MSHA, as the gentlelady from
California, Ms. Woolsey, referred to earlier.
The families of miners are sick of watching lower level
employees take the fall for upper management. In the case of
UBB, investigation witnesses have testified that Massey CEO,
Don Blankenship, and members of top management, received
reports as often as every 30 minutes or more of every day, of
every day of the week, about the production at that mine.
What happened at UBB is absolutely criminal. And the
Congress should do everything in its power to stop the
protection, in fact the reward, of this kind of sick profit
over people behavior.
Indeed in response to numerous questions, especially from
the majority side, about why MSHA didn't shut down this mine,
Mr. Don Blankenship himself could have shut down the mine at
any moment, quicker than any government entity or any person on
the face of the earth.
None of us ever want to see another disaster like UBB
happen again.
And with that stated, I do have a question that I would
like to ask Mr. Main. And perhaps it is a follow up to the
previous question.
But investigation after investigation points to the fact
that MSHA does need more staff. We know that it was a
systematic problem that occurred with MSHA. You do need more
highly trained staff, and that the existing staff is often
spread too thin trying to address too many needs.
In southern West Virginia, you have split the former
District 4 largely to address these kinds of problems creating
District 12 in June of last year. And I understand that both
districts are--or neither district rather is fully staffed,
though MSHA is working toward that.
This concerns me. And I would like to know, Mr. Main, what
MSHA is doing to ensure that both of these districts are fully
staffed and that we have sufficient number of specialists to
review technical issues like ventilation?
And what resources does the agency need to make sure that
both of these district offices are functioning at an optimal
level and that we are able to retain employees with sufficient
experience?
[The statement of Mr. Rahall follows:]

Prepared Statement of Hon. Nick J. Rahall, II, a Representative in
Congress From the State of West Virginia

Thank you, Chairman Kline and Ranking Member Miller. I appreciate
the courtesies extended to me by the Committee.
The Upper Big Branch Mine sits in my District, in fact, in my home
county. So the disaster that occurred on April 5, 2010, hit very close
to home in multiple respects.
Beyond knowing with certainty--as we now do--what caused that
tragedy, I ask for two things.
First, I ask that this Committee look responsibly at what the
Congress should do to prevent another UBB, and then do it. If that
means legislation--and I believe it does--then legislation should be
passed. I do not excuse MSHA's failures, but the Congress should not
withhold effective, life-saving legal authorities from the agency as
some kind of penalty, because, ultimately, the only people penalized by
that cockeyed approach will be our miners.
Second, I ask that whatever action is taken ensures that bad-actor
company executives, and they are a minority, who make the decisions and
set the policies that lead to tragedies like UBB are no longer be able
to hide from the law. The families of miners are sick of watching lower
level employees take the fall for upper management.
In the case of UBB, investigation witnesses have testified that
Massey CEO Don Blankenship and members of top management received
reports as often as every 30 minutes or more, every day, about the
production at that mine.
What happened at UBB is absolutely criminal and the Congress should
do everything in its power to stop the protection--in fact, the
reward--of that kind of sick ``profit-over-people'' behavior.
Mr. Chairman, I NEVER, EVER want to see another disaster like the
one at Upper Big Branch, and at other mines across my home state in
recent years.
______

Mr. Main. Thank you, Congressman.
I think--we split the district about June, I believe, of
last year.
Mr. Rahall. Right.
Mr. Main. And actually we moved into the MSHA academy, we
are looking for office space to move into so we can expand.
We are probably going to be taking over more and more of
the academy space. But Kevin Stricklin is on tap to figure
out--we have got a number that we are moving to. We are ramping
up. We are finding space for those.
And we still have a ways to go, as you said, to move some
more folks in there to get where we want to be. And we are
providing additional support from the outside to get there.
But I would hope by within the next 3 to 4 months that we
have that--both of those districts ramped up to where we have a
full complement of staff.
It is still--so this is staffing within MSHA. There are
people bidding in from other areas coming in.
We have moved some folks from District 4 into District 12.
But this will be staffed up with the--I think more experienced
folks than we had before.
One of the benefits of the hiring in 2007-2008 was--the
crew that we brought in was probably some of the most
experienced mining people that we have. I think about an
average of about 15 years mining experience.
So that is the benefit we have as we get the procedures
trained into them as far as the agency requirements. But we are
moving quickly to try to get that fully staffed.
Mr. Rahall. Okay.
Let me ask one last question.
Earlier you mentioned that rock dust samples were taken out
of the UBB mine on March 15th----
Mr. Main. Right.
Mr. Rahall [continuing]. Taken to a lab----
Mr. Main. Right.
Mr. Rahall [continuing]. And that the report from that lab
was not back until post UBB----
Mr. Main. Right.
Mr. Rahall [continuing]. Disaster. Why the lag time? And is
there still a lag time in such analysis of report----
Mr. Main. When I took this job, I got a lot of surprises.
And one of those surprises was we had a lab that handled the
rock dust sampling that was actually under a district, which is
actually not a national lab, under District 4 control.
And it was a lab that was actually one of the
responsibilities of the district itself.
What we did is we have pulled that lab out. It is now a
national lab. We have staffed it up. We have put more resources
in in terms of the sampling equipment. And we are doing much
faster sampling now.
One of the things that was going on with the samples was a
bit of a delay at that time was that they were doing some
experimental research with the CDEM device that is being
developed to try to figure out. That is going to be a quick
tool to be able to quick sample.
So that was part of the delay that was involved in that.
Mr. Rahall. Will we ever get----
Chairman Kline. The gentleman's time has expired.
Dr. Bucshon?
Mr. Bucshon. Thank you, Secretary Main for being here
today.
And I grew up in a coal mining community. My dad was a
United Mine Worker for 37 years. And any time a disaster like
this happens, it hits close to home because basically everyone
I grew up with and everyone I knew were coal miners.
So with that, I am interested in finding out, you know, it
says in the internal review that the abatement time for the one
respirable dust citation was 33 days when the allowable
standard is 7 days.
Why is MSHA setting abatement deadlines weeks beyond what
was allowed?
Mr. Main. I think one of the things that we found from the
internal review was two things.
One is that the mining company was abusing the system, and
that we were not doing enough to keep up with the system. And
some of those delays I don't think should have been in place.
I think that there was extensions----
Mr. Bucshon. Who makes the final decision on that?
I mean, it probably doesn't come to the secretary's
office----
Mr. Main. Well----
Mr. Bucshon [continuing]. I mean, where does that--say you
have an inspector, they are in the mine. They say this is a
problem. It goes--run me through the track and where the buck
stops.
Mr. Main. Yes. There are over 14,000 mines we inspect; on
the coal side, about 2,000. So yes, sometimes things are slow
getting all the way to the top.
But if you look at the administrative process, the
inspector does the action at the mine. It goes to a field
office supervisor who does the review. He goes up to a higher
level supervisor, up to administrative----
Mr. Bucshon. Can I answer----
Mr. Main. Sure.
Mr. Bucshon. Why does it go to a higher level supervisor?
I mean we have known--I mean it seems to me that that may
be part of the issue is that if you go--the more people--it is
like we are playing telephone when you are a kid.
I mean, the more people you have----
Mr. Main. But----
Mr. Bucshon [continuing]. In the system, it is going to
leave more places where the ball can be dropped. I mean----
I am sorry to interrupt----
Mr. Bucshon. Yes.
Mr. Main [continuing]. But you got up to another level of
supervisor----
Mr. Bucshon. Yes.
Mr. Main [continuing]. And then--but I think, you know,
there are different--we have a health wing and the--in the
districts. They are responsible for oversight of the health
issues.
And you have an inspector who as part of their job
inspecting deals with the occupational health issues. That
inspector has to report to the field office supervisor, the one
I said we just brought in----
Mr. Bucshon. Yes.
Mr. Main [continuing]. And trained them all.
But also to review the health things to make sure that we
are doing our job, there is a health supervisor that takes a
look at the health related things, which I think is a critical
part of our operation.
Somehow there was a breakdown that that did not get taken
care of the way that it should. And that is something that we
are taking a strong look about how we revamp not only the
supervision of our field offices, but our whole agency to make
sure that we are fixing those kind of problems.
But yes, there was something, I agree, that was a problem.
Mr. Bucshon. Yes, and my point, I guess, was that I am not
expecting every decision like these to go to the secretary of
MSHA, you know. I mean, in every organization there has to be a
point where the buck stops.
And it seems to me that, you know, the more points--the
more bureaucratic----
Mr. Main. Right.
Mr. Bucshon [continuing]. Your system, the more chance
where you are going to have to lose--drop the ball.
Now I also want to ask, NIOSH also found that MSHA
essentially has repeated the same failures and shortcomings in
each of the most recent mine disasters. And so my question is
that--and I know you are taking a lot of action. And I
appreciate that.
But I really need to know what MSHA, you know, what
ultimately is going to stop us from not learning from our
mistakes----
Mr. Main. Right.
Mr. Bucshon [continuing]. And what is going to fix this
problem?
I mean if you were to identify a few things that you would
need to ultimately fix this issue, what would that be?
I mean, we are having--we can't continue to do the same----
Mr. Main. Right.
Mr. Bucshon [continuing]. Things over and over again. And
every time have congressional hearings and say, here is where
our mistakes were if we haven't fixed it.
Mr. Main. And I agree with that.
I think that is the reason that we have said as far as
inspectors are going back and just rewriting the entire policy
manual to clean up some of the lack of clarity, the cross
directions that was in it, the lack of direction.
And also to make clear the things that we found in these
internal reviews and audits are clearly stated in these
policies. And what we do is have a check system that is
effective in checking those.
I think what happened in the past, you have an accident.
You have internal review. You would have a bunch of policies.
You just keep piling them on to the point that the wagon, the
wheels broke on the wagon.
And I think that is the core of trying to fix, as a
starting point, fix the problem. Go back and rebuild the wagon.
Mr. Bucshon. So the internal review is good. But that is
after it has happened.
So what--you know, proactive--I mean there are two ways to
manage----
Mr. Main. Right.
Mr. Bucshon [continuing]. Things either proactively or
reactively.
Mr. Main. Right.
Mr. Bucshon. And it seems like MSHA continues to manage
things in a reactive fashion rather than a proactive----
Chairman Kline. The gentleman's time has expired.
Mrs. Capito?
Mrs. Capito. Thank you. I would like to thank the chairman
and the ranking member for letting me participate in the
hearing today.
Good afternoon, or good morning still, Mr. Main.
I thank you for your service to our country and our state
and to the beloved miners that I know that you care about quite
a bit.
So I would like to also thank the committee for coming to
Beckley. I think that was a really enlightening hearing that we
had there.
There is no question the mine operator put production above
safety every single day, resulting in a huge tragedy at UBB.
But if we go back to 2006, we had a huge tragedy in my
district, Mr. Rahall. Unfortunately, UBB is in his district.
Sago was in my district. We lost a lot of miners there.
That is what this chart is all about here. Because the
resources were really upped in terms of the numbers of
inspectors that were hired post Sago, correct?
I mean that was the reason----
Mr. Main. Correct. Yes----
Mrs. Capito [continuing]. The resources were put in.
But then you and I attended a--and help me with my memory
here. We attended a reception in Charleston at the Charleston
Civic Center. I think it was at the end of 2009 where we were
celebrating that that had been the safest year.
Is that correct? Was it 2009?
Mr. Main. 2009, yes it was the safest year in the entire
mining industry.
Mrs. Capito. And then 4--3\1/2\ months later----
Mr. Main. Yes.
Mrs. Capito [continuing]. The most devastating tragedy in
40 years.
I remember at that time you talked a lot about vehicle
accidents and most of the lives that were lost were
carelessness with operating the vehicles.
I wouldn't say that you had taken your eye off the ball,
but have you reshifted? Obviously, you have reshifted your
resources, I would think, towards the life threatening massive
kinds of things that could occur in a mine, and did occur on
that tragic day.
What have you done since then to reprioritize since that
meeting we had in 2009?
Mr. Main. Well, I think there were things that we were
working on at the time that we have had a chance to get on
track.
One of them is our--it is a program we don't talk much, but
the ``Rules to Live By''. I am a firm believer that really we
really have to stay focused on the things that most apt to take
a miner's life.
And the Rules to Live By that I kicked off, I think, in
January 2010 was aimed at targeting in as we do our
inspections, and to educate the mining industry on the most
common causes of mining deaths.
We just launched ``Rules to Live By'' version III which dug
a little bit deeper into the cause of fatalities and ``Rules to
Live By II'' deals with the catastrophic kind of fatality.
So we are paying attention as an industry to those.
And then the last gentleman that raised the question, we do
need to do things differently.
And some of the things we started off right at the time we
were speaking, as well as the thing that worried me when I took
this job most of all, when I saw that 55 percent of my
inspectors had 2 years or less, growing up in this mining
industry is something that got my attention.
And one of the places I thought we needed to start the
quickest is to get a control over the management of our whole
system was to bring in all of our field office supervisors,
retrain them, make sure they knew how to manage the programs,
make sure they knew what they need to focus on.
And to make sure that they understood some of the
deficiencies of these past audits and the reviews have found.
Unfortunately, we were just starting that at the time of
UBB. But things like that that I think are critical, and then
taking a look back at some--a better targeting or finding out
who the bad actors are in this industry.
Mrs. Capito. Right. I don't mean to interrupt you, but I
have only got 5 minutes.
I just want to give you a chance to clarify this. It showed
that there was a complete--excuse me--a computer glitch that
prevented this particular mine from going into the Pattern of
Violation which is obviously a category in which closure would
be more readily available as an enforcement mechanism.
I am going to give you a chance to say have you fixed this
computer glitch?
Mr. Main. It got fixed pretty quick. We found it. We fixed
it.
And we actually spent a lot of quality time with the
Inspector General's Office, quite frankly, with a lot of help
from them to have them look around and see if we had anything
else that was a problem.
This was a program that unfortunately, the Mine Act went
into effect in 1977. This program was put in effect, I think,
in 2007. And the folks who were putting the data in failed to,
I guess, put in certain data--a certain category. But that was
fixed.
Mrs. Capito. Let me just say, finally too, in terms of the
inexperience of inspectors, I mean, we can't fast forward the
clock here. We can't give somebody 2 more years of experience.
So we have got to make sure----
Mr. Main. Right.
Mrs. Capito [continuing]. The training and experience that
they get right now assures those miners that are right there
now, that they are not going to overlook or oversee.
These two reports have shown that there were some lack of
enforcement or lack of knowledge, or too much complexity as to
what the actual mine inspector was actually asking to do.
But I want to be assured when I leave this hearing today
that the inspectors that are there now, regardless of the years
of experience, do have this depth of experience that they need
to have.
Mr. Main. All right----
Mrs. Capito. And my time is up.
Chairman Kline. The gentlelady's time has expired.
I want to thank Secretary Main for being with us today.
Your patience and forthright answers are very helpful----
Mr. Holt?
Chairman Kline. You are recognized.
Mr. Holt. Thank you very much, Secretary Main.
It seems to me the key question that we come back to is
whether there are teeth. Whether the sanctions are so minor
that--I mean, M-I-N-O-R, that the poor performers have very
little incentive to clean up their acts.
What--forgive me if I am retreading ground that you have
already been over. But it seems to me it is the key question.
What do we need to do legislatively to strengthen the
sanctions?
Mr. Main. I think--I have talked about a number of this
today. I think they are contained in legislation that was
already reported as a body.
And it deals with things that I think are very fundamental.
One is, you know, giving miners better protection to be
able--for them to be able to speak out. I believe that those
mine operators are flaunting the law given the best tools we
are throwing at them. And given the use of--our actions to curb
things like advance notice that some still don't get it, that
we need to deal with.
Mr. Holt. But the State of West Virginia has done that, I
guess. But this needs to be done at a federal level, I believe.
Is that----
Mr. Main. Yes, I think there are more tools that we need to
effectively do our job. Yes.
Mr. Holt. Okay.
Well, I want to thank you for your work. Some might ask why
would a representative from New Jersey be involved in this.
And as I think you know, I grew up around miners. I really
respect the work they do. And it is really criminal the way
they have been treated.
So I want to make sure that those who engage in criminal
behavior are treated like criminals. And we have to make sure
that the sanctions are real and felt.
So I thank you very much for your work----
Ms. Woolsey. Will the gentleman yield?
Mr. Holt. I would be happy to yield.
Ms. Woolsey. Thank you.
Joe, you are about ready to leave here. Could you
succinctly tell us what legislation we have to pass to make a
difference to the miners? Because we can't just clear up
bureaucracy----
Mr. Main. Right.
Ms. Woolsey [continuing]. Because we are going to be right
back where we started because the bad actors are not going to
change.
What is missing in this picture?
Mr. Main. Well, yes, I am going to start with one of the
things that we have said, there are a lot of things that we can
do better and we need to. And we are. We are----
Ms. Woolsey. But I am talking about us.
Mr. Main. Yes. But I am just like working up the ladder to
the point that, there are a lot of things we are undertaking to
fix. We are looking at regulatory improvements out of Upper Big
Branch.
But even with those, at the end of the day, there is still
those things that are left that we do not think that we have A,
the current tools to fix, nor the ability to fix them.
And that is to figure out a way to give miners a better
voice. That is to have a law that has respect where the
criminal sanctions are one that really deters bad behaviors,
that gets the bad folks acting like the good folks out there,
ways that we can get information, and ways to make sure that we
are fully effective--enforcing the law.
Ms. Woolsey. So how important is subpoena power?
Mr. Main. I would just say that in West Virginia, if it
hadn't been for UBB, we would not have been able to even ask in
a legal way, or demand in a legal way, people to come even
answer questions.
Ms. Woolsey. But we----
Mr. Main. We had to go to West Virginia.
Ms. Woolsey [continuing]. Do we even need to make that
possible for you, for MSHA?
Mr. Main. That was in the past legislation as something
that we supported then. And I don't think anything has changed.
Mr. Rahall. Would the gentlelady yield?
Ms. Woolsey. Yes.
Mr. Holt. For both I believe I have the time that I----
Yield. Sorry.
Ms. Woolsey. I would be happy to yield to my friend from
West Virginia----
Mr. Rahall [continuing]. Quick question for both
investigations and inspections, subpoena power?
Mr. Main. You have to be able to get the facts regardless
of what the issue is if you want to get the facts to whether it
is an investigation or an accident.
Because if you don't get the questions that could be a
problem in an investigation. You may not prevent an accident
that you want to investigate later.
So yes.
Mr. Rahall. Thank you, Mr. Secretary. Thank you, Mr.
Chairman.
Chairman Kline. Thank the gentleman.
And now, Mr. Secretary, thank you very much for being with
us today. We appreciate your patience.
We will, I will ask the second panel to come forward now
please.
Mr. Main. Thank you, Mr. Chairman.
Chairman Kline. It is my pleasure to introduce our second
distinguished panel of witnesses.
Mr. Howard Shapiro is Counsel to the Inspector General at
the Department of Labor. Mr. Cecil Roberts is president of the
United Mine Workers of America. And Dr. Jeffery Kohler is a
director in the Office of Mine Safety and Health Research with
the National Institute for Occupational Safety and Health.
Before I recognize each of you for your testimony, I will
just remind you of the lights. I know all of you have been
here.
We have got a green light, a yellow light, and a red light.
The green light will indicate that you have 5 minutes. The
yellow light, you have 1 minute. And the red light we would ask
you to wrap up your testimony.
Your entire written testimony will be included in the
record. So you can summarize if you would like.
With that, we will start with Mr. Shapiro.
You are recognized, sir.

STATEMENTS OF HOWARD SHAPIRO, COUSEL TO THE INSPECTOR GENERAL,
U.S. DEPARTMENT OF LABOR; CECIL EDWARD ROBERTS, JR., PRESIDENT,
UNITED MINE WORKERS OF AMERICA; DR. JEFFERY KOHLER, DIRECTOR,
OFFICE OF MINE SAFETY AND HEALTH RESEARCH, NATIONAL INSTITUTE
FOR OCCUPATIONAL SAFETY AND HEALTH

STATEMENT OF HOWARD SHAPIRO

Mr. Shapiro. Thank you, Mr. Chairman.
I will summarize my written statement that has already been
provided.
Is it on now? Okay.
Thank you, Mr. Chairman. Thank you for inviting me to
testify this morning with respect to the OIG report on
allegations of retaliation and intimidation related to the UBB
accident investigation.
In March of 2011, we received a complaint from the United
Mine Workers of America alleging that attorneys for Performance
Coal and the attorneys for MSHA were holding private meetings
to discuss important issues, and that they were inappropriately
making deals, which in some cases resulted in vacating safety
citations and orders.
Subsequently in April, we received a complaint from an
attorney for Performance Coal, representing Performance Coal,
alleging misconduct by Norman Page, who was heading up the UBB
accident investigation for MSHA.
What the OIG decided to do was to address both of these
complaints by looking at five separate incidents that were
cited in the Performance Coal complaint, one of which was also
referenced in the UMWA complaint.
The first incident involved MSHA's issuance of a safety
order and citation to Dr. Christopher Schemel, who was one of
Performance's expert consultants. And the order and citation
would have required him to withdraw from the mine until he
received 40 hours of new miner training.
What we found was that Mr. Page was not the impetus for
this action. And that he was only marginally involved in it.
The second incident involved another order and citation, in
this case, issued to another consultant, Dr. Pedro Reszka. And
this order and citation required--would have required Mr.
Reszka, or Dr. Reszka, to withdraw from the mine until such
time as he could receive some refresher safety training.
In this case, Performance Coal alleged that the order and
citation were issued in retaliation for a complaint which they,
Performance Coal, had filed regarding an incident which took
place in the mine and involved Dr. Reszka.
Again in this case, we found that the citation and order
were not issued as a result of any retaliation by Mr. Page or
anybody at MSHA. It was issued as the result of the personal
observations of several MSHA inspectors regarding Dr. Reszka's
conduct and behavior in the mine.
And I would note that this was the order and citation that
was also cited by the UMWA in their complaint to us, albeit
from a very different perspective.
The third incident involved a meeting between Mr. Page and
Dr. Schemel to discuss the Reszka citation and order. And that
took place because Dr. Reszka was a subcontractor for Dr.
Schemel.
During this meeting, Mr. Page allegedly threatened Dr.
Schemel with further citations and orders, and other negative
effects on his company, if he did not accept the citation
issued with respect to Dr. Reszka.
We found that Mr. Page did not intend to retaliate against
Performance Coal or Dr. Schemel during this meeting.
The fourth incident involved MSHA's scheduling of an
inspection of the mine rescue station that serviced the UBB
mine. We found that the decision to schedule the inspection by
two District 6 inspectors who were unaware that a recent
inspection of the rescue station had already been done by
District 4.
When they learned of this recent inspection, they cancelled
the inspection that they were going to do. So again, we found
no evidence of retaliation.
And the fifth incident involved MSHA's issuance of another
order banning another employee of another consultant from
entering the mine until he received new miner training. And
again, we found that Mr. Page was not involved in the decision
to issue the order and citation in this case.
So in summary, Mr. Chairman, our review of these five
incidents did not substantiate the allegation that Mr. Page
engaged in any sort of pattern of intimidation or retaliation,
and nor did we find that MSHA, as an entity, engaged in such a
pattern at Mr. Page's behest or otherwise.
However during our review, we did identify three
questionable management actions.
One of these was that the ultimate decision made by
officials from MSHA and the Office of the Solicitor to vacate
the citation and order related to Dr. Reszka was made not based
upon the safety merits, but rather was made to avoid an
appearance of retaliation and to avoid possible congressional
scrutiny.
In response to our report, the department generally agreed
with our findings and stated that MSHA decided to vacate the
citation and order related to Dr. Reszka on the condition that
he receive additional safety training, which he did.
So in conclusion, Mr. Chairman, I would reiterate that our
primary objective was to review the allegations against Mr.
Page. We did not substantiate those allegations.
And I would certainly be pleased to answer any questions
that you may have or any other members of the committee.
[The statement of Mr. Shapiro follows:]

Prepared Statement of Howard L. Shapiro, Counsel to the Inspector
General, Office of Inspector General, u.s. Department of Labor

Good morning, Mr. Chairman and Members of the Committee, I
appreciate the opportunity to discuss the Office of Inspector General's
(OIG) report of inquiry regarding allegations of retaliation and
intimidation related to the Upper Big Branch (UBB) accident
investigation.
As you know, the OIG is an independent entity within the Department
of Labor (DOL); therefore, the views expressed in my testimony are
based on the findings of my office's work and not intended to reflect
the Department's views.
Background
Following the April 5, 2010, underground explosion at the UBB mine
in West Virginia, the Mine Safety and Health Administration (MSHA)
initiated an investigation into the causes of the accident. At the time
of the explosion, Performance Coal Company operated the UBB mine as a
subsidiary of Massey Energy Company.
On March 16, 2011, the OIG received a complaint from the United
Mine Workers of America (UMWA) alleging that the attorneys for
Performance Coal, and the attorneys for MSHA in the DOL's Office of the
Solicitor (SOL), were excluding other parties involved in the
investigation by holding private meetings to discuss ``issues of
importance to the investigation.'' The complaint also alleged that
MSHA's attorneys in SOL were inappropriately ``making deals'' with
Performance Coal attorneys, resulting in MSHA vacating legitimate
safety citations and orders. In a subsequent phone call, UMWA clarified
that this allegation had to do specifically with MSHA's attorneys in
SOL forcing MSHA to vacate a citation and order involving Dr. Pedro
Reszka, one of Performance Coal's expert consultants for the accident
investigation.
On April 29, 2011, while we were reviewing the UMWA complaint, we
received a complaint from an attorney representing Performance Coal.
This complaint alleged that MSHA's District 6 Manager, Norman Page, who
was leading the accident investigation for MSHA, had engaged in
misconduct by launching a campaign of intimidation and retaliation
against the company's accident investigation team and, in particular,
its expert consultants. The complaint alleged that Mr. Page had
repeatedly ordered the withdrawal of the company's scientific experts
from the mine without a good faith basis; attempted to intimidate the
company's experts with retaliatory citations and orders; and threatened
future retaliatory orders against one of the company's experts in an
attempt to influence the expert's work product and opinions.
OIG's Review
The OIG decided to address these two complaints by looking at five
incidents referenced in the Performance Coal complaint, of which one
was also referenced in the UMWA complaint, albeit from a different
perspective. The OIG's Office of Legal Services reviewed pertinent
documents, and conducted in-person and/or telephone interviews with 26
individuals from MSHA, SOL, UMWA and Performance Coal Company.
It is important to note that this review was limited to the
specific allegations made against Mr. Page. This review did not include
any matters related to the causes of the explosion, MSHA's inspection
and enforcement activities at the UBB mine prior to the explosion, or
any aspects of the accident investigation other than the five matters
cited by Performance Coal and/or UMWA:
The first incident involved MSHA's issuance of a citation
and order requiring Dr. Christopher Schemel, Performance Coal's lead
scientific consultant with respect to the UBB investigation, to
withdraw from the mine until he received 40 hours of ``new miner''
training. We found that Mr. Page was not the impetus for the citation
and order and he was only marginally involved in the matter. Other MSHA
officials informed us that the issue of Dr. Schemel's training was not
addressed for several months, and simply ``fell through the cracks,''
due to the hectic and busy atmosphere surrounding the first few months
of the accident investigation.
The second incident involved MSHA's issuance of a citation
and order requiring Dr. Pedro Reszka, another scientific consultant
hired by Performance Coal, to withdraw from the mine until such time as
he could receive refresher safety training. Performance Coal alleged
that the citation and order were issued in retaliation for a complaint
which Performance Coal raised regarding an incident which occurred in
the mine wherein a UMWA representative dislodged a piece of roofing and
allegedly endangered Dr. Reszka's safety. We found that the citation
and order were not issued as the result of any retaliatory intent by
any MSHA officials. Rather, the decision to issue the citation and
order was made independently by an MSHA inspector based on his personal
observations of Dr. Reszka, and upon input he received from other MSHA
inspectors who had spent time with Dr. Reszka in the mine, at a time
when the inspector was unaware that any complaint had even been raised
about the actions of the UMWA representative. Notably, the citation and
order were similarly cited by the UMWA, but from the perspective of
alleging that MSHA's attorney's in SOL were inappropriately ``making
deals'' with Performance Coal attorneys, resulting in MSHA vacating
legitimate safety citations and orders, including the one relating to
Dr. Reszka.
The third incident involved a meeting between Mr. Page and
Dr. Schemel, who met to discuss the Reszka citation and order. During
the meeting Mr. Page allegedly threatened Dr. Schemel with further
citations and orders, with increased scrutiny by MSHA, and with other
negative effects on his company, if he did not accept the citation
issued with respect to Dr. Reszka, who was a subcontractor for Dr.
Schemel. We did not find that Mr. Page intended to retaliate against
Performance Coal or Dr. Schemel. Although MSHA officials and attorneys
from the Office of the Solicitor had tentatively agreed to vacate the
citation and order, we found that Mr. Page's contention that his
objective was to reach a compromise between Performance Coal and the
UMWA was credible and corroborated. In particular, Mr. Page hoped that
such a compromise would prevent the UMWA from initiating a campaign of
filing multiple safety complaints against Performance Coal that would
require significant MSHA resources to investigate. Although we did
question Mr. Page's judgment with respect to how he proceeded with this
meeting and some of the things which he said to Dr. Schemel, we did not
find any support for the claims of intimidation or retaliation.
The fourth incident involved MSHA's allegedly retaliatory
scheduling of an inspection of the mine rescue station that serviced
the UBB mine since, according to Performance Coal, that same mine
rescue station already had been inspected several times after the UBB
accident by District 4 inspectors. We found that the decision to
schedule the inspection of the mine rescue station was made by two
District 6 MSHA inspectors at a time when neither of them knew that a
recent inspection of the rescue station had been done by District 4
and, when they learned of the recent inspection, they appropriately
cancelled their own planned inspection of the rescue station.
The fifth incident involved MSHA's issuance of an order
banning John Montoya, an employee of another consultant hired by
Performance Coal, from entering the mine until he completed the 40-hour
new miner training. We found that Mr. Page was not involved in the
decision to issue the order relating to Mr. Montoya, and we were
therefore unable to conclude that the order was part of a pattern of
intimidation or retaliation on Mr. Page's part, or by MSHA officials in
general.
In summary, our review of these five incidents did not substantiate
the allegation that Mr. Page engaged in a campaign or pattern of
intimidation or retaliation. Further, we found no evidence that MSHA,
as an entity, engaged in such a campaign or pattern, at Mr. Page's
behest or otherwise. However, during our review, we did identify three
questionable management actions:
We found that the ultimate decision made by officials from
MSHA and the Office of the Solicitor to vacate the citation and order
related to Dr. Reszka was not based on the merits, but rather was made
to avoid an appearance of retaliation and any potential congressional
scrutiny.
We found that Mr. Page used poor judgment when he met with
Dr. Schemel to discuss the Reszka citation and order, without any other
individuals being present, and when he made statements that could have
been perceived and/or interpreted as intimidating.
We also found that it may have been appropriate for MSHA
to consider other, less punitive approaches, short of issuing a
citation and order, with respect to the order and citation issued
against Dr. Schemel, given that MSHA allowed him to go underground in
this mine for some three months before realizing he did not have the
proper training.
DOL's Response
In responding to our report, the Department indicated that the
Office of the Solicitor had conducted its own review of the allegations
against Mr. Page, and that its conclusions were in agreement with the
OIG conclusions.
Regarding the specific management actions questioned by the OIG,
the Department stated that MSHA decided to vacate the citation and
order related to Dr. Reszka on the condition that he receive additional
safety training prior to returning to the mine, which he did. The
Department stated that this result was appropriate, and therefore
planned no further action for this finding.
Further, the Department agreed with the OIG finding that Mr. Page
had used poor judgment when he met with Dr. Schemel without any other
individuals being present. The Department stated that while Mr. Page's
actions could be viewed as imprudent, he had no intention to intimidate
Dr. Schemel or engage in retaliation; therefore, the Department planned
no further action for this finding.
Regarding the citation and order related to Dr. Schemel, the
Department stated that it could not comment on the OIG finding that
MSHA could have considered less punitive measures to resolve this
situation because the order and citation were still in litigation.
However, the Department agreed to provide guidance to assure
consistency of enforcement regarding the applicability of its training
regulations.
Conclusion
In conclusion, Mr. Chairman, I would reiterate that our primary
objective was to review the allegations against Mr. Page, and we did
not substantiate these allegations. Thank you, Mr. Chairman, for the
opportunity to present the results of our review. I would be pleased to
answer any questions that you or other Members of the Committee may
have.
______

Chairman Kline. Thank you, Mr. Shapiro.
Mr. Roberts?

STATEMENT OF CECIL ROBERTS

Mr. Roberts. Thank you very much, Mr. Chairman and Ranking
Member Miller for calling this hearing.
I want to thank all of the panel members who have
participated in this.
And thank you so much on behalf of the coal miners of the
United States for Congress' concern about the health and safety
of coal miners in the United States.
Excuse me.
I want to also very much thank you for remembering the
families of the lost miners. Many of these people were my
friends. I grew up with some of these people who lost their
lives. And if I didn't know the miners themselves, I knew
someone in their families.
This morning, I would like to remember in particular the
Davis family. Linda Davis and Charles Davis lost a son and two
grandsons in this tragedy.
The past 2 years have been very difficult for that family.
And unfortunately on Friday, the funeral of Linda Davis took
place. And I wanted to say to you, she was a wonderful lady.
One of the things that I would recommend--people have been
asking what can we do and what can we do? One of the first
things I would suggest that should be bipartisan here is that
these families get treated better when these tragedies occur.
A miner working at a nonunion mine, or for that matter a
union mine, can designate someone to represent them in an
investigation. That happened at Upper Big Branch where more
than two miners had designated the United Mine Workers to
represent them. So we were a representative of those miners at
Upper Big Branch.
The families do not enjoy that right. And I have to tell
you that that is something that is discussed very much
throughout the coalfields and how tragic that is that the
people who have suffered the most can't have someone
representing them when these hearings are ongoing, and when the
investigation itself is ongoing.
I don't think anyone sitting in front of me believes that
is correct, so one of the easy things that I believe that we
can do here is correct that situation.
We have to have three things in order for something like
Upper Big Branch not to occur again.
Number one, we have to have an operator who is willing to
follow the law. The first obligation here is for the industry
to protect these coalminers.
Number two, we have to have an agency which fully enforces
the law.
And three, we have to have workers who are empowered to
speak out for themselves.
I want to report to you today that none of these three
ingredients existed at Upper Big Branch.
We know and we have heard testimony repeatedly here, that
we had an operator who was recalcitrant and who was
dictatorial. And it wasn't just the Upper Big Branch mine. All
of these mines operated by Massey Energy, you could find
similar situations.
And in fact MSHA has found those same kinds of situations
existing, the same dangerous conditions existing before Massey
turned these operations over or sold them to Alpha Natural
Resources.
And I wanted to remind you of the famous, infamous memo
sent out in October of 2005 by Don Blankenship, sent to all
deep mine superintendents entitled, Running Coal. This is from
the man--this is from the top person in this company.
And he believed, and the miners believed, and most people
in West Virginia believed that he was above the law. He was
above the governor. He was above this Congress right here.
So that you will know that is how he was perceived in
southern West Virginia.
``If any of you have been asked by your group presidents,
your supervisors, engineers or anyone else to do anything,
anything other than run coal such as build overcasts,'' which
happens to take ventilation to the working sections, ``do
construction jobs or whatever, you need to ignore them and run
coal. This memo is necessary only because we seem not to
understand that the coal pays the bills.''
We have consistently said that people like Don Blankenship,
and I have called for him to be led away in chains and locked
up in jail because that is where he deserves to be, because if
any one person is responsible for what happened at Upper Big
Branch it is Don Blankenship.
Number two, what we need to do is clarify the authority of
MSHA. We have repeatedly said well why didn't MSHA close this
mine down?
Well, let us clarify that authority. If we believe that
that is what they should do, when they find circumstances like
they found, let us clarify that authority and say, you do have
it.
If you want to do something for the coal miners of the
United States of America, you stand behind whoever is running
MSHA and say to the operators, you may choose to operate like
Don Blankenship did, that you, the Congress of the United
States, Republican and Democrat alike, will stand behind the
enforcement agency of the United States and see that we do not
see these conditions again.
Number three, workers need to be empowered. And if you can
do one thing before you leave this session of Congress, let us
give the power to the coal miner himself, because as we are
sitting in this room today, I guarantee you, that some foreman
somewhere is telling a miner to go under unsupported top,
telling that miner to do something that is going to get him
hurt, telling that miner to do something that is going to get
him killed.
And that should be a felony. That coalminer should be able
to say I am not doing that. I am exercising the right that
Congress gave me. And if you continue to tell me to do
something dangerous, you are going to jail.
They don't have that ability today as we speak, because
they know they will be fired. And they won't have a job. And
they won't find another job.
Thank you. And I will be glad to answer any questions that
you have.
[The statement of Mr. Roberts follows:]

Prepared Statement of Cecil E. Roberts, President,
United Mine Workers of America

Thank you for the opportunity to address the House Committee on
Education and the Workforce, Full Committee on Workforce Protections
about Learning from the Upper Big Branch Tragedy. I am the
International President of the United Mine Workers of America (UMWA), a
union that has been an unwavering advocate for miners' health and
safety for over 122 years.
Before I speak about what we can learn from the Upper Big Branch
tragedy, I want to acknowledge all of the families that lost a loved
one and neighbors who lost a friend in the senseless methane/coal dust
explosion on April 5, 2010. The 29 families all suffered a loss that we
can never forget. The victims paid with their lives for the deliberate
greed of Don Blankenship and his underlings.
The UMWA has long held that three things are necessary for a safe
and productive mine:
An operator who is willing to follow the law.
An agency which fully enforces the law.
Workers who are empowered to speak out for themselves.
None of these things happened at the non-union UBB mine.
Don Blankenship's team pursued a game of cat and mouse with the
Mine Safety and Health Administration (MSHA). While MSHA inspectors
were trying to determine whether Massey was following mine health and
safety laws and regulations, as all operators are required to do,
Blankenship's management was regularly doing what it could to
subvert MSHA's efforts. Every day they did that, they jeopardized the
safety of all miners working under their control and direction. On
April 5, 2010, the vulnerable miners at the Upper Big Branch mine fell
victim to the needlessly dangerous and neglected mine environment.
It is not a secret in the coalfields that some operators give
advance notice to miners working underground of MSHA inspections. Mine
Managers make quick and superficial adjustments to the ventilation,
quickly rockdust the entries where an inspector would be headed or shut
down production entirely on a working section in order to avoid being
cited for violating MSHA's standards. Through the work of the United
States Attorney's office in Charleston, West Virginia, we finally have
public confirmation from one of the Massey managers who affirmatively
engaged in such deceptive practices. Earlier this month, Upper Big
Branch Mine Superintendent Gary May gave testimony in Hughie Elbert
Stover's sentencing hearing about that mine's practice and system for
providing information to miners working underground whenever federal
and state safety inspectors were on the property, with details about
where the inspectors would be traveling and inspecting. Stover was
convicted and sentenced to three years in prison on February 29, 2012.
Mr. May further explained that he acted deliberately to change
underground mining conditions to make them temporarily appear better
and more compliant than they had been while the mine was actively
operating but before learning about the inspector's underground
presence.
We don't mean to claim that Massey and its subsidiaries had a
monopoly on these illegal practices, but its rogue attitude had become
an integral part of the operating culture at the Upper Big Branch mine.
It became so bad that miners came to view the unlawful mining practices
as the norm. Some of the more experienced miners probably knew that
what Massey was doing was wrong, but they had to work. Tolerating
unsafe conditions was necessary if they wanted to keep their jobs. On a
daily basis, these miners worked in an atmosphere of fear and
intimidation. However, there can be no question that for Don
Blankenship and his Massey mines, production was the top priority; and
the second priority; and the third priority * * * This is demonstrated
by the October 19, 2005 memo Don Blankenship sent to All Deep Mine
Superintendents entitled ``Running Coal'' which stated ``If any of you
have been asked by your group presidents, your supervisors, engineers
or anyone else to do anything other than run coal (i.e.--build
overcasts, do construction jobs, or whatever), you need to ignore them
and run coal. This memo is necessary only because we seem not to
understand that the coal pays the bills.''
One stark example of Massey's unlawful behavior was revealed in the
report from MSHA's Internal Review where it described Massey's frequent
re-staging of its continuous mining machines/mechanized mining units
(MMU's) to avoid citations for excessive respirable dust. Cutting coal
creates mine dust that must be both reduced and controlled through
ventilation, water sprays and rock dust to protect miners' lungs and to
prevent explosive coal dust accumulations. Autopsy records of the UBB
miners who were killed in the explosion uncovered surprisingly high
levels of black lung and other lung disease within this workforce,
including among the youngest victims. Seeing what the Internal Review
discovered about MSHA's ineffective enforcement of the respirable dust
standard (30 CFR Part 70) at UBB suggests miners at this operation were
often exposed to excessive levels of respirable dust.
MSHA's regulations set maximum permissible respirable dust levels
and require reductions to the dust levels depending on how much quartz
is also present. However, as the Internal Review explained, MSHA
District 4 allowed Massey to re-establish (that is, to increase) its
permissible dust levels whenever it rotated its MMUs. Therefore, even
though MSHA would establish a reduced respirable dust level for a
certain area based on the level of respirable coal dust and the
percentage of quartz generated by a MMU, Massey was able to avoid
compliance with that reduced respirable dust standard simply by
rotating out the MMU that was used to set the reduced level. With a
different MMU in place, MSHA terminated any citation that was issued
for excessive dust and allowed Massey to operate its replacement MMU
with dust at the unreduced standard of 2.0 mg/m3 even though the same
amount of quartz would have been present. This deliberate manipulation
of the dust standard, established by the law, was the practice
according to the Internal Review. MSHA District 4 also regularly
allowed Massey to have abnormally long abatement periods for its dust
citations. Massey was manipulating the law and too often MSHA District
4 allowed the company to get away with it.
MSHA's Internal Review outlines numerous deficiencies on the part
of the Agency. These MSHA shortcomings, in particular MSHA District 4,
allowed miners to remain in harm's way though the Agency should and
could have prevented such exposures. In other words, although Massey
failed in its duty to comply with mine safety laws and regulations,
MSHA had a duty to utilize every enforcement tool at its disposal so
that miners' safety would not be jeopardized. Massey made MSHA's job
much more difficult by its subterfuge, but that doesn't excuse or
explain MSHA's shortcomings.
We now know that MSHA District 4 inspectors failed to:
Inspect some areas of the mine (including in its last
inspection, the Old No. 2 Section and the belt/return entries of
Tailgate #22 tailgate, both areas where the explosion propagated), and
rushed their inspections through other areas.
Cite lack of adequate roof support controls that the roof
control plan specified.
Identify inadequacies in the coal and coal dust program
including failures in the cleaning of loose coal, coal dust and float
coal dust and the extent and duration of noncompliance with rock dust
standards along belt conveyors.
Use current rock dust survey procedures and to collect
spot samples from older sections of the mine to see that UBB had the
required incombustible content of rock dust to mine dust.
Scrutinize the operator's examination records and require
timely abatement of hazards cited and consider the hazards for purposes
of determining the operator's degree of negligence.
MSHA District 4 Supervisors, who had jurisdiction over the Upper
Big Branch mine, did not provide effective oversight of the inspectors.
District 4 failed to:
Conduct 110 (c) special investigations (to determine if
mine management knowingly violated mandatory standards) when
established protocols indicated that would have been appropriate in six
cases.
Forward to MSHA's Arlington Headquarters eight violations
that should have been considered for ``flagrant'' violations.
Further, in reviewing mining plans for approval, experienced MSHA
District 4 personnel made a number of mistakes, including:
Not requiring methods in the ventilation plan that would
mitigate methane inundations like the one that occurred in 2004.
Not recognizing that (a) the roof control plan did not
provide necessary pillar stability for ventilation in some areas and
(b) the roof control plan did not include any of the required stability
calculations to show the plan would be adequate.
MSHA headquarters also failed to:
Realize--due to a computer glitch--that the mine's
violation history qualified UBB for the ``Potential Pattern of
Violation'' list.
Use or distribute its directives and policies effectively,
some of which conflicted with each other. MSHA employees did not always
understand the policies.
Ensure that all entry-level or journeymen inspectors had
the required training. Some of those responsible for inspecting or
supervising inspectors at Upper Big Branch did not have all the
required training. MSHA's own policy does not permit entry-level
inspectors to travel by themselves, which occurred at UBB.
The scope of internal MSHA problems ran from top to bottom.
However, MSHA District 4 Supervisors dropped the ball by ignoring
several red flags as I previously stated.
The Internal Reviews following the previous five underground coal
mine tragedies of the preceding decade (Jim Walter Resources in 2001;
Sago, Aracoma and Darby in 2006; and Crandall Canyon in 2007)
identified a number of problems that persisted into 2010. It is time
that we stop talking about these problems and fix them.
While it may be appropriate to criticize the mistakes MSHA made
before the UBB tragedy, it would be a huge disservice to the miners who
perished at UBB and to their families if that is all we did. Instead,
we should think proactively and take affirmative steps to make mines
safer.
Immediately after the Upper Big Branch tragedy MSHA began its
program of impact inspections, targeting operations where it has reason
to be concerned about Mine Act compliance. MSHA captures the mine
communications system to prevent advance warnings of inspections.
MSHA's impact inspections have uncovered large numbers of significant
and potentially dangerous conditions. The Agency has also gone to court
to test its authority to seek injunctions. These techniques have been
successful in preventing operators from continuing to operate in the
most hazardous of conditions.
Even a more aggressive MSHA, one that uses the array of enforcement
tools never used before the UBB tragedy, cannot protect miners if mine
operators continue to flaunt the law. And too many do.
The UBB disaster serves as a stark reminder that the culture of
production over health and safety still exists in the coalfields. Don
Blankenship and Massey represented the worst of the coal industry. They
flagrantly violated and ignored the law at the expense of the miners.
Don Blankenship's philosophy cost the lives of 29 miners at UBB and
countless others that lost their lives at Massey's mines.
The UMWA applauds the U.S. Attorney's office for pursuing criminal
prosecution against individuals who contributed to the April 5, 2010
tragedy at UBB. However, allowing Don Blankenship to walk away from the
crimes he and his underlings committed at UBB would be a gross
miscarriage of justice. He laid out the rules under which UBB operated
and kept a watchful eye to ensure that his policies were being
followed. Don Blankenship should be prosecuted for his actions and I
stand here today saying to this Committee that until corporate heads
like Don Blankenship are held accountable for their actions, we have
not witnessed the last senseless tragedy and loss of life in the coal
industry.
What is also upsetting to me is the misdemeanor plea deal that
federal prosecutors recently reached in the 2007 deaths of nine workers
at the Crandall Canyon Mine in Utah. Murray Energy's subsidiary, Genwal
Resources, agreed to plead guilty to two mine safety crimes and pay
$250,000 for each of the two criminal counts. The travesty of justice
is that the plea agreement states that no charges will be brought
against any Genwal mine managers or any executives. Once again, the
real guilty parties escaped justice. I guess the cost of nine lives is
$500,000.
MSHA cannot be everywhere all of the time. That is why the law
correctly charges operators with the duty of operating in a safe and
healthful way. If an operator wants the privilege of running a coal
mine, it must assume the obligation of doing so in a way that doesn't
put its employees' lives in jeopardy. Yet, this doesn't always happen.
Too often corporate greed takes precedence. We urge Congress to
increase the penalties for egregious mine health and safety violations.
So what else can we do to reduce the likelihood of any more coal
mining disasters? We owe it to all miners to learn from the problems
that led to the Upper Big Branch tragedy as well as from other
disasters.
What this Committee and Congress does really matters to the coal
miners of this nation. After the Sago mine disaster and others in 2006,
Congress required that coal operators make underground shelters
available to protect miners who survive but cannot escape an explosion
or mine fire. Despite the tremendous explosive forces that rocked the
Upper Big Branch mine, a shelter near the explosion survived intact and
could have sheltered miners if they had survived the explosion. That
Strata shelter was under water for weeks, and yet it remained dry
inside. Had that shelter been at the Sago mine in January 2006, eleven
of the twelve miners killed would still be with us today. Without
Congress advancing the issue in the 2006 MINER Act, we still would not
have shelters underground.
Again, through the MINER Act, Congress required significant
improvements in tracking and communications' technology and equipment.
Coal operators claimed it couldn't be done, or the costs were too high
to allow them to remain in business, but Congress appreciated that
changes were necessary and demanded that the industry implement the
improvements. By legislating these changes, there was a flurry of
imaginative and creative work done to develop practical equipment that
could survive the harsh mine environment. These state of the art
systems are in place all over the United States today.
We appreciate that some operators are spending more money on
equipment and technology to make the mine environment safer for miners.
However, more improvements can be made. For example, rock dust sampling
results are not completed in a timely fashion. The mine environment can
become extremely explosive in a very short period of time if rock dust
is not applied regularly. Rock dust is required to minimize the
explosiveness of coal dust in case there is an ignition source present.
While better and newer dust explosibility meters exist, most
operators--as well as MSHA--are not purchasing them because they are
not required to use them. This equipment can provide immediate, real
time information about the incombustibility of rock dust to coal dust
levels. Instead, the current protocol provides for the samples to be
sent to MSHA's lab, where the Agency uses antiquated equipment to test
the samples. It takes 2-3 weeks to return the results. I would like to
point out that operators like Consol, Patriot and Alpha are taking
advantage of this new technology. At Upper Big Branch, samples taken
before the April 5 explosion showed that the mine had inadequate rock
dust--but those sample results were not reported until after the
disaster. We are left to wonder whether having the results in real time
would have averted this disaster.
The illegal practice of advance notice of safety inspections is not
limited to Upper Big Branch but occurs at many operations. MSHA's
recent tactic of taking control of the communications systems when
inspectors travel to operations has demonstrated that advance notice is
not uncommon: the kind and extent of violations found when the
communications are taken over exceed those MSHA had previously
discovered. Clearly, the existing penalties for advance notice are
ineffective and should be increased to help effect compliance.
Another area where the Mine Act should be updated concerns its
whistleblower protections. The Mine Act was one of the first to provide
whistleblower protections against discrimination or retaliation for
reporting safety violations. However, these provisions are now inferior
to recent and more-protective whistleblower provisions included in
other statutes. Miners under the Mine Act now have only 60 days to blow
the whistle. This window should be lengthened to give miners a better
chance to pursue actions when they suffer discrimination or retaliation
for exercising their health and safety rights.
The compensation provisions in Section 111 of the Mine Act should
also be expanded. As it now stands, miners generally can collect no
more than one week's worth of wages when an operator's violations
require MSHA to shut down the mine. Too often miners have to make the
choice between putting food on the table and protecting their own
safety. By expanding the compensation provisions, miners' health and
safety would be better protected.
MSHA's accident investigation procedures must also be modernized.
The UMWA has always advocated that an independent agency should conduct
all accident investigations much like the National Transportation
Safety Board. Asking MSHA to critique its own actions following a
disaster does not always lead to the most objective point of view. We
further believe that the law should be changed to include in the
investigation those most affected: the miners and family members of
deceased miners. We also believe that MSHA must have the power to
subpoena witnesses, rather than rely on voluntary interviews.
The UMWA is not convinced that any one action by MSHA would have
resulted in substantially better compliance on the part of Massey. It
is clear that UBB should not have been operating at the time of the
explosion. Had MSHA District 4 used all of the enforcement tools at
their disposal, the disaster may have been prevented. However, no one
should ever lose sight that Massey Energy, including Don Blankenship
and his underlings, were mandated by law to comply with all health and
safety standards and maintain UBB in a safe operating condition.
Instead, the mine was operated in a manner compliant with a corporate
policy that put production over safety. This is why I will once again
call for the criminal prosecution of these individuals.
The authors of the Internal Review have recommended that the
Assistant Secretary consider rulemaking that would modify several
health and safety standards. The recommendations are found in Appendix
C--Recommendations for Regulatory Changes. There are 23 separate
provisions outlined in Appendix C, all of which would improve health
and safety protections for miners. The UMWA is in complete agreement
with these recommendations in addition to the changes we outlined in
our report.
This gets me to my last point. Congress needs to act quickly to
pass legislation that will build on the protections of the 2006 Miner
Act. As Congress so eloquently stated in the Act: ``the first priority
and concern of all in the coal or other mining industry must be the
health and safety of its most precious resource--the miner.''
In conclusion, I thank you for the chance to appear before this
Committee and appreciate your interest and concern for miners' health
and safety.
exhibits
Internal Review of MSHA's Actions at the Upper Big Branch
Mine--South, Performance Coal Company, Montcoal, Raleigh
County, West Virginia

U.S. Department of Labor, Mine Safety and Health Administration,
Program Evaluation and Information Resources, March 6, 2012.

Industrial Homicide--Report of the Upper Big Branch Mine
Disaster
United Mine Workers of America.

October 19, 2005 Don Blankenship memorandum on ``Running
Coal''

West Virginia House Bill 4351
______

Chairman Kline. Thank you, sir.
Dr. Kohler?

STATEMENT OF JEFFERY KOHLER

Dr. Kohler. Good afternoon, Mr. Chairman, Ranking member,
other members of the committee.
My name is Jeffery Kohler and I am the associate director
for mining at the National Institute for Occupational Safety
and Health, and the director of NIOSH's Office of Mine Safety
and health Research.
I am pleased to be here today to provide a brief update on
our activities related to the miner act and to speak to you
about the work of an independent panel that assessed the
process and outcomes of the Mine Safety and Health
Administration's internal review of the UBB mine disaster.
NIOSH continues to work with our partners in labor,
industry and government to develop and implement practical
solutions to mining safety and health problems.
Our primary focus remains on prevention. And towards that
end, we have implemented interventions to reduce respirable
dust, to prevent roof falls, and to prevent coal dust
explosions among others.
For example, the Coal Dust Explosibility Meter, you know,
became available this past June.
Our work in the technology area has led to the
commercialization and in-mine use of communications and medium
frequency systems, such as the CDEM frequency system, also the
Lockheed Martin Through-The-Earth system for post-accident
functionality.
Despite all of the progress, the explosion at UBB serves as
a poignant reminder that more remains to be done. Following
that disaster, the secretary of labor requested the director of
NIOSH to appoint a panel of experts who would be independent of
MSHA and DOL, to assess the processes and outcomes of MSHA's
internal investigation.
I was appointed to that panel. And I speak to you next
about my role as a panel member.
The panel's report was not reviewed or cleared by NIOSH,
CDC, OR HHS, prior to its release.
All mine operators must take a proactive role in ensure the
safety of mine workers. And as the accident investigations have
concluded, Massey Energy's highly noncompliant practices
directly caused the explosion at the UBB mine.
It is impossible to know how many thousands of deaths have
been prevented through MSHA's enforcement action. Yet in those
instances when the operator's actions have caused the disaster,
we must understand why, learn from, and take actions to prevent
future occurrences.
MSHA's internal investigation team was thorough. And it
disclosed fully every deficiency it found at MSHA's enforcement
performance.
A review of MSHA's internal reviews for other mine
disasters also revealed a candid and detailed disclosure of
shortcomings in MSHA's enforcement performance. The same or
very similar deficiencies show up in many of these internal
reviews. And now, as in previous internal reviews, a detailed
set of recommendations has been put forth to fix the identified
problems.
No doubt, those recommendations will be helpful if
implemented. But we do not believe, the panel does not believe,
that only doing more of the same, more training, changes to
handbooks, or administrative procedures and policies, will
fully achieve the desired performance that MSHA expects.
We believe there are underlying problems which have
developed over the years that must be solved. The report Of
MSHA'S internal review and the interview transcripts detail a
workforce of inspectors, specialists, and supervisors that is
severely overloaded and trying to accomplish a lengthy set of
duties that is not fully doable.
With the insights that we gained from our assessment, we
have developed four overarching recommendations that we believe
should be implemented.
Our first recommendation is for a comprehensive analysis of
the current enforcement paradigm to identify and repair any
underlying weaknesses. Collectively, we cannot continue to do
the same thing and expect a different and better outcome.
As part of this recommendation, we have suggested several
topics that we believe should be included in the comprehensive
discussion: workforce and workforce readiness issues,
continuing challenges in the plan approval process, and better
use of information technologies to aid enforcement, among
others.
Second, we have recommended a few changes to MSHA's
internal review policy itself to enhance the value of their
process.
Third, we have recommended independent oversight to ensure
successful implementation of their recommendation.
Finally, we have recommended technical investigations to
support development of best practices guidelines, and to inform
statutory or regulatory activities, in particular, improve
monitoring explosion prevention, and ventilation practices.
In closing, NIOSH continues to work diligently to protect
America's mine workers. And our research activities will enable
NIOSH together with MSHA, labor, and industry to better protect
mine workers.
Thank you, Mr. Chairman. And I would be pleased to answer
any questions.
[The statement of Dr. Kohler follows:]

Prepared Statement of Jeffery Kohler, Associate Director for Mining;
Director of the Office of Mine Safety and Health Research (OMSHR),
National Institute for Occupational Safety and Health (NIOSH)

Good morning Mr. Chairman and other distinguished Members of the
Committee. My name is Jeffery Kohler, and I am the Associate Director
for Mining and the Director of the Office of Mine Safety and Health
Research (OMSHR) at the National Institute for Occupational Safety and
Health (NIOSH), which is part of the Centers for Disease Control and
Prevention (CDC), within the Department of Health and Human Services.
NIOSH continues to develop and deploy new practices and
technologies that make mines safer and help miners remain healthy. Some
of these have been described to you in the past, when they were in the
developmental stage. Today, I will give you an update on a few of them,
and I will tell you about newer projects that are currently underway.
The MINER Act of 2006 (P.L. 109-236) placed a special emphasis on
the development, adaptation, and transfer of technologies to improve
safety and health in the mining industry. New technologies to improve
the post-accident survivability of miners, envisioned after the Sago
Mine disaster in 2006, are commercially available today, and many have
been deployed in the industry. Many of these were made possible through
the work of NIOSH and because of the support provided by the Congress.
Ongoing partnerships with labor, industry, and government continue
to facilitate the development of practical solutions to challenging and
pervasive mining safety and health problems, and today I will tell you
about one such effort. I will also speak to you about the work of the
Independent Panel that assessed the process and outcomes of the Mine
Safety and Health Administration's (MSHA) Internal Review of the Upper
Big Branch Mine disaster. I was appointed to serve as the Executive
Secretary of the panel.
NIOSH's mining research priorities address disaster prevention and
response, traumatic injuries, cumulative trauma disorders, respiratory
diseases, and hearing loss. In the area of disaster prevention, rock
dust is applied to coal mine surfaces to prevent coal dust explosions,
but to be effective, it must be applied in sufficient quantity to
achieve an 80% or greater ratio of incombustible material. A laboratory
test is the only way to determine whether the coal dust is no longer
explosive. Historically, a sample was collected, sent to a laboratory
for testing, and then the result was reported--usually a week or more
later. Over the years, NIOSH developed and has attempted to
commercialize a Coal Dust Explosibility Meter (CDEM). The CDEM is an
instrument used to assess the explosibility of coal dust in real-time.
In June 2011, a commercial manufacturer began production of the CDEM.
This commercialization was preceded by extensive in-mine testing
throughout the United States, which demonstrated the utility and
accuracy of the device. Presently, some mine operators are beginning to
use the CDEM to assess the explosion hazard and make adjustments in
real time. NIOSH has drafted a report entitled ``Coal Dust
Explosibility Meter Evaluation and Recommendations for Application''
and is planning to finalize it soon.
The personal dust monitor (PDM) is not only commercially available
but is now certified in accordance with 30 CFR Part 74 (Coal Mine Dust
Sampling Devices) as an approved dust sampling device--a prerequisite
to its use in compliance monitoring. This device represents a
significant advancement in the campaign to eliminate coal worker
pneumoconiosis (black lung disease). Already some operators have begun
to use this device, and limited NIOSH studies to date find that when
empowered with this technology, miners will use it to reduce their
exposure to respirable dust.
The reduction of respirable dust in the production environment is
as important as ever, and NIOSH has developed a best practices handbook
and conducted several ``train-the-trainer'' workshops to disseminate
these practices throughout the industry. At the same time, our
scientists and engineers are studying new and potentially more
effective technologies for further reducing respirable dust levels. The
``canopy air curtain'' for use on roof bolters, for example, envelops
the operator inside a ``canopy'' of filtered air. If the in-mine trials
are as successful as those in the laboratory, it will eliminate one of
the highest respirable dust exposures.
Equipping miners with the knowledge, skills, and technology to
escape successfully during mine emergencies is a continuing priority.
NIOSH has developed training and technology in this area, and recently,
we funded the National Academies to conduct a comprehensive analysis of
self-escape in the context of mining safety. They will examine judgment
and decision making under conditions of stress and uncertainty,
essential competencies for escape, training methods to impart the
skills needed to plan and execute an escape, and technologies that
could improve the chances of self-escape, among others.
A few months ago, NIOSH researchers conducted a workshop with
industry, labor, and government stakeholders from the metal/nonmetal
and coal sectors to identify training successes and gaps, and to set
priorities for improvement over the next five years. Recently, a set of
training programs on the use of refuge chambers was completed. We are
also seeking more effective ways to train miners, and over the past
year we have adapted a 360-degree virtual reality theatre that we
observed being used in Australia to train mine rescue teams. Building
on their work, we are already developing advanced training simulations
that will allow teams of miners to interact simultaneously. One of our
initial efforts is focusing on means to train miners more effectively
to escape under emergency conditions.
Of course, practices to prevent emergencies in the first place
should be everyone's priority, and toward that end, NIOSH researchers
have developed improved techniques to prevent mine explosions and roof
falls, and we will continue to conduct research in priority areas such
as methane flows into and out of gob areas of active longwall panels
(mined out areas made up of caved in rock).
Since the passage of the MINER Act, NIOSH has awarded 94 technology
development and research contracts, targeting innovations in
communications and tracking, escape, rescue, sensory systems to improve
hazard recognition, and prevention efforts with an emphasis in mine
explosion prevention and fire suppression.
These efforts have produced several technological advancements that
have significantly improved post-accident survivability, provided a
framework to enhance detection of hazardous conditions as they develop,
and aided in fundamental understanding of mechanisms that contribute to
disastrous events, which are leading to enhanced intervention
technologies and strategies to prevent their occurrence.
Prior to the MINER Act, communication in most underground mines was
equivalent to a simple, land-line-style telephone system that was
highly vulnerable to disruption due to local and large-scale mine
catastrophes, such as explosions and ground falls. All mines now have
installed some form of primary wireless, two-way communication,
reaching to all locations within the mine with sufficient redundancy to
enhance survivability in local-scale mine disasters. Secondary systems
which require much less infrastructure have also been developed to
enhance survivability in large-scale mine disasters. Commercially
available systems include the medium frequency system and the Through-
the-Earth (TTE) systems. ``Gateways'' have been developed to allow
interoperability among these systems, and this provides for greatly
improved post-accident survivability and functionality, even when parts
of systems have been compromised.
Collaborations with the Navy, the National Aeronautics and Space
Administration (NASA), the National Institute of Standards and
Technology (NIST), and the Department of Energy (DOE), among others,
are being used to leverage taxpayer investments in one agency to the
solution of problems in another. Similarly, working collaborations are
underway with mining safety and health agencies in other countries. For
example, the Safety in Mines Testing and Research Station (SIMTARS), a
mining safety agency in Queensland, Australia, and NIOSH are jointly
developing a mine escape vehicle, which incorporates enhanced breathing
capacity, communication, and guidance into a conventional mine
transport vehicle. A prototype has been designed and built to provide
life-support functions for 10 to 12 miners, operate in an oxygen-
deficient, low- or no-visibility atmosphere, and travel at speeds
faster than miners can walk out of a mine. Underground field trials of
the prototype vehicle will occur later this fiscal year.
There are many examples to illustrate the mine safety and health
improvements that are attributable to the research, development, and
translating activities of NIOSH, as well as to the collaborations of
NIOSH with MSHA and labor and industry partners. It is impossible to
quantify how many disasters have been prevented and how many lives have
been saved as result of the work of NIOSH and its partners at MSHA,
labor, and industry. On the other hand, when something goes terribly
wrong, the human cost is all too apparent--and then there is a
responsibility to understand what went wrong and what needs to be done
to ensure that it never happens again.
Following the explosion at Performance Coal Company's Upper Big
Branch Mine South (UBB), which resulted in the death of 29 miners and
serious injuries to two other miners, Hilda Solis, Secretary of the
U.S. Department of Labor, requested that the Director of NIOSH identify
a panel of individuals with relevant experience to conduct an
independent assessment of the MSHA Internal Review (MSHA IR). Secretary
Solis asked the UBB Independent Panel to assess the MSHA IR Team's
processes, conclusions, and recommendations.
Dr. John Howard, the Director of NIOSH, appointed four experts in
areas relevant to the MSHA IR Review and MSHA's UBB enforcement
activities to serve on the independent panel. Members of the
independent panel included Lewis Wade, Ph.D., (Chair); myself
(Executive Secretary); Michael Sapko, M.S; and Alison Morantz, Ph.D.,
J.D. Susan Moore, Ph.D., of the NIOSH Office of Mining Safety and
Health Research served as staff assistant and Recording Secretary. The
Assessment produced is not a NIOSH publication. The views expressed by
the
Panel members are their own professional views and not necessarily
those of NIOSH, CDC or HHS.
In April 2010, Joseph Main, Assistant Secretary of Labor for Mine
Safety and Health, instructed MSHA's Director of Program Evaluation and
Information Resources (PEIR) to assemble a team to conduct an internal
review of MSHA enforcement activities at UBB in accordance with
applicable MSHA policy and procedures. The PEIR Director assembled a
group of MSHA employees without current enforcement responsibilities in
Coal Mine Safety and Health District 4 to serve on the MSHA IR Team.
Over a period of nearly two years, the MSHA IR Team reviewed
thousands of pages of records on enforcement activities (including
ventilation and roof control plans, correspondence files, handbooks,
policy manuals, and enforcement inspectors' notes) and interviewed 87
MSHA employees.
In June 2010, the independent panel met with the MSHA IR Team for
the first time. Over the ensuing 18 months, seven follow-up meetings
took place via conference call between the MSHA IR Team and the
independent panel. At each of these meetings, the MSHA IR Team briefed
the independent panel on its progress and consulted with the panel on
specific methods being used to examine discrete aspects of MSHA's
actions or inactions prior to the UBB explosion. Meanwhile, the
independent panel periodically asked the MSHA IR Team to provide it
with specific documents, including prior MSHA Internal Review Reports,
Internal Policy and Procedures, and the Ventilation Plan Approval
Handbook. The independent panel analyzed all materials that it received
from the MSHA IR Team, including reports from internal reviews that
MSHA had conducted in the wake of earlier mine disasters from 2001
onwards.
On January 11, 2012, the MSHA IR Team provided NIOSH with a draft
report and requested the independent panel's views about the report. On
February 3, 2012, the independent panel conveyed its comments to the
MSHA IR Team. On February 23, 2012, the MSHA IR Team provided its final
IR report to the independent panel.
MSHA's Administrative Policy and Procedures Manual, Volume III,
Section 1200, entitled ``Internal Review Policy and Procedures,''
establishes the objectives, responsibilities, and procedures for
conducting an internal review of an incident in an underground mine
resulting in three or more fatalities. The independent panel assessed
the MSHA IR process, conclusions and recommendations against this
policy.
The independent panel prepared a report that summarizes its
assessments of MSHA's Internal Review, and specifically the processes
it used, its conclusions, and its recommendations. Further, the
independent panel report provides a set of recommendations that it
believes will lead to a lasting improvement in MSHA's enforcement
performance.
I appreciate the opportunity to testify this morning and thank you
for your continued support. I am pleased to answer any questions you
may have.
______

Chairman Kline. Thank you, Dr. Kohler.
Thanks to all three of you.
Dr. Kohler, it looks to me like you have got something next
to you on the table there. That I would--from here the Coal
Dust Explosability Meter, I think.
Is that ready for prime time?
Dr. Kohler. Yes it is.
Chairman Kline. Excellent. So you believe it can be used as
a compliance tool right now.
Dr. Kohler. That is correct.
Chairman Kline. I just wanted to give you the opportunity
to raise it up. I----
Dr. Kohler. Yes.
Chairman Kline. Well, you brought such a nice device there
and I just hate for it to sit on the table.
Thank you. Thank you very much.
Again, Dr. Kohler, West Virginia, as so many
investigations--West Virginia's UBB report made a
recommendation to NIOSH to further study active and passive
barriers.
Can you explain what those are? Describe NIOSH's previous
work in this area, and what you need to complete this study.
Dr. Kohler. Yes. Active and passive barriers serve as
secondary means of quenching an explosion once it has started.
Active and passive barriers would offer the opportunity to
be placed in certain strategic locations, for example in
certain belt entries, so that if the other mechanisms failed
and there were a dust explosion, the barriers would most likely
quench that explosion.
In order to implement these barriers, there are a few
remaining questions, some experiments that need to be done. And
as the State of West Virginia recommended, there is some
additional research that we need to build on the work that we
did several years ago.
At our Lake Lynn Experimental Mine, for example, that
facility has the ability to do the kind of work that needs to
be done to verify and to provide the best practices for
applying active and passive barriers.
Chairman Kline. Okay. I am not sure I understand fully what
you need to complete the study. But thank you for the answer.
I want to pick up on something I talked about earlier and
we have been sort of stepping around this all day.
NIOSH's independent review stresses that MSHA's internal
review perhaps failed to address the broader more important
issue, that is, quote--``would a more effective enforcement
effort,'' by MSHA, ``have prevented the UBB explosion?''
Looking beyond the specifics of this question for the
moment, how do you believe MSHA could best understand the
underlying issues concerning its involvement in Upper Big
Branch?
Dr. Kohler. I think the panel believes that there are a
number of underlying systemic issues in terms of the workforce,
workforce readiness, the expectations placed on the inspectors,
a wide range of issues that need to be examined.
It is simply not a matter of improving training for
inspectors or simply a matter of rewriting books and handbooks.
But rather trying to probe more deeply into why these things
persist in event after event.
Chairman Kline. Did NIOSH provide experts to MSHA during
the accident investigation?
Dr. Kohler. Yes. The agency provided some technical
analyses, some laboratory work, and advice.
Chairman Kline. So they were onsite or not onsite or a
mixture?
Dr. Kohler. Not on site.
Chairman Kline. So they were just there to answer
questions?
Dr. Kohler. Or to conduct laboratory work at the Burson
facility.
Chairman Kline. I am just keeping with you here, Dr.
Kohler. I am sure we are going to get to everybody else here in
a minute.
We were talking about mining technology a lot, ever since I
have been on this committee. We talked about communications
devices and safe chambers and so forth.
One thing that has been discussed is foam rock dusting. Can
you explain what that is and is it ready?
Dr. Kohler. I can't speak specifically to whether or not it
is ready. There is certainly some experimental validation that
needs to be done before it could be applied in the mines to
meet regulatory requirements.
It is a newer process of applying rock dust, so that it
adheres better to the walls of the coal without producing
respirable dust downwind.
It is a new process that is being advocated as an
improvement. And I think that it--pending further study, it may
represent an important improvement.
Chairman Kline. Okay. Thank you very much.
I see my time is about to expire.
Mr. Miller?
Mr. Miller. Thank you.
Mr. Kohler, one of your recommendations, I believe, is to
reevaluate the requirement of quarterly inspections of all
mines.
Is that correct?
Dr. Kohler. Not exactly. No. We are not recommending that.
The recommendation was to look more broadly at our current
enforcement expectation or model, and to put on the table some
ideas to begin that discussion.
We suggested seven or eight topics. One of which is the
number of inspections.
The transcripts and the internal review detail a workforce
stretched so thin that it is very difficult for them to be
successful in their work. And so----
Mr. Miller. By successful you mean effective?
Dr. Kohler. Yes. And so if the resource is ineffective,
then it begs the question how are we allocating the resources?
Is it important? Should we be doing more or less of it?
Mr. Miller. President Roberts, have you looked at those
recommendations?
Mr. Roberts. Yes, I have.
Mr. Miller. Your opinion?
Mr. Roberts. As some of the recommendations--and I am glad
Dr. Kohler clarified the one on the quarterly inspections. We
feel that those fours and twos, as they are referred to in the
industry, are extremely important.
Some of the other recommendations appear to be saying let
us give more responsibility to the coal operators and mine
management and take some of that responsibility away from MSHA.
We would be totally opposed to that.
And I think if we can just point to pre-1969 when that
existed, and I would remind this panel if you go back the 40
years preceding the 1969 Act and do the analysis of what
happened to the 40 years after, you will find that 30,000 some
miners lost their lives before the passage of the Mine Act. And
less than 3,000 lost their lives 40 years afterwards.
So we would have to say that legislation that was passed by
Congress has saved a lot of lives. And the things that you do
here are important.
Mr. Miller. But in terms of this relooking at the
inspection regime, you don't have a problem with that. In a
sense, I assume what you are trying to determine is what is
effective and what isn't effective. And what could be changed
to make it more effective.
Because obviously, you know, the record is replete with a
series of inspections where we just end up doing more
inspections and finding the violations over and over again.
I mean that is the problem you heard discussed here
earlier.
What is the next step after that?
But are we using the mine inspector's time in the best
interest of creating a safer workplace?
Dr. Kohler. Yes, and also asking the question, what can we
do to change the fact that in internal investigation after
internal investigation, we see a similar pattern of
deficiency----
Mr. Miller. Are the mine workers are part of that
discussion?
Mr. Roberts. The most recent recommendations or suggestions
by the panel, no.
Mr. Miller. Well, what happens to the follow on to this? Is
that all internal?
Dr. Kohler. In terms of a follow on, we are hoping that
someone will constitute a group of people----
Mr. Miller. Okay, so that hasn't been determined yet,
whether----
Dr. Kohler. No. not at all. We simply.
Mr. Miller [continuing]. Bring in the industry. You bring
in the mine workers and others to discuss.
Dr. Kohler. We said that this body should include labor,
industry, academia, government.
Mr. Miller. President Roberts, before I run out of time
here, three or four of us have asked the question when you have
a bad actor, how do you get rid of the bad actor because we
have been unable to do that to date?
We get into a lot of penalties. We get into a lot of
citations. We get into a lot of court actions back and forth.
But we don't get rid of the bad actor. And the pattern
appears to continue until there is a tragedy.
So how do we do that?
Mr. Roberts. I would suggest to you that the government
charged with protecting the miners does not possess the tools
to achieve the goals that everyone up here seems to be
interested in achieving.
That is if you have a Massey Energy and you have someone
like Don Blankenship running a number of mines that are
extremely dangerous, how do you stop that?
Well, number one, the penalties, criminal penalties under
the Mine Act are ridiculously low. We just saw that at Crandall
Canyon where $500,000 for two criminal acts is all they had to
pay. That is not even a half a day's work for production on a
longwall.
So the penalties are extremely low. No one is going to pay
particular attention to that.
I think there needs to be more severe penalties. And I
think those penalties have to go up the ladder higher than they
do currently.
When we put mine foremen in jail, the person who told them
the mine foreman what to do is still walking around free and
clear. So we have to be able to go up the ladder, all the way
up to the chief executive of the company if that is who is
making these decisions and putting others at risk.
Mr. Miller. But that is beyond a misdemeanor.
Mr. Roberts. Oh, absolutely. That has got to be a felony.
And it has got to be written into the law. And it doesn't exist
right now.
Mr. Miller. Thank you.
Mr. Walberg [presiding]. The gentleman's time has expired.
I recognize myself.
Mr. Shapiro, thanks for being here.
Your written testimony notes that OIG found Mr. Page the
leader of MSHA's investigation team, who have used, and I
quote--``poor judgment,'' in dealing with some of Massey's
representatives, and that he, quote--``made statements that
could have been perceived or interpreted as intimidating,''
significant statement there.
First, can you please explain what Mr. Page said that could
have been perceived as intimidating?
Mr. Shapiro. Well, Mr. Page, when he discussed this matter
with Dr. Schemel, had brought up the possibility that if the
order was not vacated--the order that involved Dr. Reszka--if
that order was not vacated, that there was a possibility that
complaints would be filed against his company, against Dr.
Schemel, against his company; that these complaints would have
to be investigated by MSHA; that these complaints could end up
leaving a black mark upon his reputation in the industry.
At one point Mr. Page referred to a picture that he had
gotten reportedly from the UMWA. And Dr. Schemel believed that
that was a picture of--might have been a picture of him, and so
all of this was the sort of dialogue that went on that led Dr.
Schemel--led us to conclude that he--Dr. Schemel could have
perceived that he was being intimidated if he did not agree to
vacate the safety order that involved Dr. Reszka.
As we explained inn our report, it appeared that Mr. Page
was trying to legitimately broker a deal and try to please all
the parties, the parties here being Performance, and the UMW,
and MSHA.
Because Mr. Page was legitimately concerned--and several
people told us this, even people with Performance--legitimately
concerned that the accident investigation would be impeded if
MSHA had to investigate all types of safety complaints, whether
they came from UMWA or anywhere else.
Because they statutorily have to investigate all of these
complaints, Mr. Page's primary objective was to complete this
investigation, the accident investigation.
So that was the scenario in which we concluded that there
could have been at least a perception of intimidation by Dr.
Schemel. But we did not conclude that that was Mr. Page's
intent in that connotation----
Mr. Walberg. Well, I guess in light of all that, secondly,
can you explain your understanding of why Mr. Page was in a
position where he was having closed door meetings with Massey's
representatives, and making comments that could have been
perceived as intimidating?
Mr. Shapiro. Well, I am not sure I can answer for MSHA to
say why he was in that position. What we were told was that an
agreement had been reached between the Performance attorneys
and the MSHA attorneys to vacate the order and citation of Dr.
Reszka receive the training.
But Mr. Page was concerned that if that occurred, if the
order and citation were vacated, that there maybe this flurry
of complaints that he would have to investigate, that MSHA
would have to investigate. And therefore impede the
investigation.
And Mr. Page asked if I could try to sit down with Dr.
Schemel and work this out. And that led to this meeting. He was
advised by officials in MSHA, yes, why don't you see what you
can do.
Mr. Walberg. But it appears that that then indeed could
have taken away from Mr. Page's ability to conduct the
investigation of the explosion.
Would you agree or wouldn't you?
Mr. Shapiro. I am sorry. That what could have taken away?
Mr. Walberg. That it could have taken away. These
activities he was involved with took away from Mr. Page's
ability to conduct investigation of the explosion.
Mr. Shapiro. I am still not sure which activities you are
referring to, sir.
Mr. Walberg. The activities of Massey--being with Massey,
involved in the closed door meetings, the intimidation
perception that was there.
Mr. Shapiro. Frankly, I am not sure how I see how the
meeting itself would have taken away from his----
Mr. Walberg. Okay.
Mr. Shapiro [continuing]. His role as the head of the
accident investigation.
What he was concerned about was that complaints would be
filed. And those complaints, those safety complaints, would
have to be investigated and they would impede the
investigation.
It wasn't the meeting itself----
Mr. Walberg. Okay.
Mr. Shapiro [continuing]. That was the real concern.
Mr. Walberg. I appreciate that. I think that is what--with
lack of art--I was trying to get at there.
Thank you very much.
My time has expired.
Ms. Woolsey?
Ms. Woolsey. Thank you very much.
So Mr. Roberts, it appears that MSHA doesn't have the power
they need to stop the bad actors. Workers--that doesn't even
appear--it is certain they don't.
And workers are unable to work within their company, at
their jobsite, and when they are the ones that know if there is
a danger, they can't identify these hazards. They can't do
anything about them without fear of losing their jobs.
And Congress hasn't, as of this moment anyway, done
anything to change this.
Will you tell us from your perspective, as a representative
of these workers, why don't they just walk off the job?
Mr. Roberts. If they walk off the job, Congresswoman, they
are going to be fired.
And in the case--if you go back to prior to Massey selling
these operations to Alpha, most of the mines in southern West
Virginia were Massey mines.
And so it is not just a matter if you were terminated at
mine A, you just went down to mine B and got a job. You ran
into the same employer at mine B, mine C, mine D, mine E. And
you probably would never work in southern West Virginia again.
You would probably have to leave the area to find a job in the
mining industry.
Ms. Woolsey. So----
Mr. Roberts. It is a more sophisticated form of
blackballing.
Ms. Woolsey. Right. And one of the--I think we all remember
when we were at Beckley, one of the mothers of one of the
miners who had lost his life, she said he would come home every
night and it was like he was unbelievable that he could drive
home. Because by the time he got through with his day in the
mine, the oxygen in his blood was so contaminated that he would
flop down on the sofa and pass out.
And she would say to him, ``Son, why don't you first go to
your management.'' ``I can't.'' ``Then why do you keep this
job?''
And he said, ``Mother, there are no other jobs. And this
is--I will--I am risking my life and I know it for this job.''
OSHA would not allow--Dr. Kohler, OSHA would not allow an
employer to retaliate against an employee who pointed out a
hazard in the worksite.
Why do you think the miners have to put up with that?
What do we need to do to change that? Let me ask you that.
That I guess----
Mr. Roberts. Well, I can answer----
Ms. Woolsey. All right----
Mr. Roberts [continuing]. That if you would like.
Ms. Woolsey. All right.
Mr. Roberts. First of all I think technically the law
supposedly protects miners. But there is the law and there is
reality.
Miners in southern West Virginia do not believe, or did not
believe particularly when Don Blankenship was running these
mines, that anybody could protect them.
They didn't believe the governor could. They didn't believe
this Congress could. They didn't think the president of the
United States could keep their job or protect them from Don
Blankenship.
And you have to understand the type of individual this was
who--he visited these mines. He flaunted his power and
authority. And he was retaliatory. And he had a long, long
history of that.
So what you have to do if you want to prevent this in the
future, we don't have many of these type people. I am just----
Ms. Woolsey. I know that----
Mr. Roberts [continuing]. I want to make sure that we are
clear on that. Most operators don't act like this.
Ms. Woolsey. Right.
Mr. Roberts. But you are going to have those type people
from time to time, and you have to protect these miners from
them. And you have to write it in the law that the people who
put miners in unsafe conditions, it is jail time.
Ms. Woolsey. So had you been sitting in Secretary Main's
seat, what would you have said we need to do?
Mr. Roberts. Had I been sitting in Secretary Main's--let
me--we have publicly said that this mine should have been
closed. And there has been a debate about these situations for
30 years now, whether MSHA really has the authority or not.
And we said that this mine should have been closed. We
think there could have been enough of paperwork and things,
maybe going to court or whatever, but as has been pointed out,
would have taken a long time.
We need to grant whoever the assistant secretary is that
authority. So we don't have this again.
Because I don't think it is clear in the law that they have
this kind of authority.
Ms. Woolsey. Thank you, Mr. Chairman.
Thank you, Mr. Roberts.
Mr. Walberg. I recognize Dr. Bucshon.
Mr. Bucshon. Thank you.
Dr. Kohler, NIOSH's independent panel found three critical
events that led to the Upper Big Branch tragedy. And friction
at the ignition at the longwall shearer--ignition of
accumulated methane gas and then the explosion of float coal
dust.
Can you kind of walk us through each one of those and find
out--and give me a kind of a synopsis of where MSHA's
involvement and actions in respect to these, had they been done
properly, could have prevented this?
First let us just take friction ignition at the longwall
shearer. Describe what that is briefly. And then tell us what
could have been done.
Dr. Kohler. As the cutting drum is rotating, the cutting
drum has cutting picks on it. And those picks tear into the
coal and to the roof rock.
When those picks in particular strike harder roof rock, you
create some heat. And if the bits are dull or broken, you can
create quite a bit of heat, and you can leave up a thermal
smear which indeed can become hot enough to ignite methane. And
when that occurs, it is known as a frictional ignition.
So one question: was there anything that could have been
done to have previously detected, through enforcement action,
to prevent the cutting drum from being in the condition it was
found in where there were broken and missing cutter bits, and
also in operative water sprays?
And the panel in looking at the findings in the internal
review decided that no, there was nothing that MSHA could have
done in an enforcement sense to ensure that a frictional
ignition would not have occurred.
Mr. Bucshon. Okay, how about the methane gas?
Okay, so let me just tell you the background. Like I said
before, my dad was a coal miner. The last job that he had
before he retired was as a--basically he walked around and
checked the coal mine for methane and air quality and all that.
He was the examiner. And so I know a little bit about that.
What could have been done about that?
Dr. Kohler. All right, so based on the findings of the
accident investigations, there was an accumulation of methane
which then ignited, probably from this frictional ignition. And
the question is----
Mr. Bucshon. Was that a bigger problem in the coal mine
with their ventilation--with the way they controlled the
airflow through their mine? I mean specifically why there was
any accumulation.
Were they not putting up the appropriate things to direct
the air the way it needed to be, because I mean that is a
bigger issue, right?
Dr. Kohler. That is a bigger issue. And the panel I served
on did not redo any part of the accident investigation. We
simply used the facts that they gleaned.
So there was an excess amount of methane that had
accumulated. A very effective way to reduce accumulations of
methane is through ventilating, proper ventilating air.
There was not proper ventilating air according to the
investigations; one of the reasons that there was improper
ventilating air down in that area of the mine was because of a
partial blockage in the tailgate entry from a roof fall.
Mr. Bucshon. Now I can--sorry to interrupt, but I can tell
you my dad, I have talked to him about this type of situation.
As an examiner if he would have come in a previous shift and
saw that that was improper, he would have reported that up and
that would have been corrected, or the shift, the next shift
couldn't come down that coal mine.
So why--did you find out why that happened?
Dr. Kohler. Yes. I can't speak to why the operator's
preshift examination or the operator's personnel didn't detect
and doing anything about that----
Mr. Bucshon. Well, I guess my argument is they probably
did. And the question is where--did you find where that--I
mean, I can't imagine the examiner or whatever you call him
today, would have not reported that. And say, hey, there is,
you know, we don't--I mean it is pretty simple. You holdup an
air flow meter, right, and it tells you whether the air is
moving and which direction and----
Dr. Kohler. Or a visual inspection. The MSHA's internal
investigation revealed that that portion of the tailgate had
been visited, inspected four times. And that would have been an
opportunity to notice that there were missing supplemental roof
supports.
If those roof supports had been in place, it is less likely
that there would have been such a roof fall that blocked the
air.
Mr. Bucshon. So I guess my final question is--and this will
be something that--and I am not implying any impropriety
anywhere along the line.
But was there any evidence anywhere along the line for
financial incentive of anyone in this process other than the
operator, not to correct these problems?
I mean, or that if there were problems were identified
financial incentive not to report them properly?
Dr. Kohler. There was nothing that we found in the internal
review report that would suggest that.
Mr. Bucshon. And as a follow up, do you think based on what
MSHA--well it seems my time has expired. So I will yield back.
Thank you.
Mr. Walberg. Thanks for being observant.
The gentleman from West Virginia, Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman.
I thank the panel for their testimony you had this morning
as well as you, Mr. Roberts, President Roberts, for all that
you do for our nation's coal miners.
I agree with you that one of the critical voices or perhaps
you didn't say this, but I am, that's missing from today's
hearing are those of the families of the UBB miners.
For that reason, I would like to read a part of a statement
that was sent to the committee by Gary and Patty Quarles, the
parents of Gary Wayne Quarles, I am sorry, who perished at UBB.
And then perhaps get your thoughts on it.
Quote--``Something is going to have to be changed that
these people that are in charge of running these mines need to
be accountable. This is going to keep happening because our
laws say we will protect you to these companies, not the
miners. How many more will go unpunished because of out of date
laws that go back to 1969? This state was afraid to touch
Blankenship, so he was let go with however he wanted to run
this company. My son and 28 others were just at work. They had
no one protecting them. Please don't let their deaths be in
vain. And let another family be destroyed.''
This is from Mr. Quarles' letter. And I would ask unanimous
consent that his entire letter be made a part of the record, if
not now, at the proper time.
[The information follows:]

Prepared Statement of Gary and Patty Quarles, Naoma, WV

We are the parents of Gary Wayne Quarles. He was one of the miners
that was killed in the UBB explosion.
Something is going to have to be changed that these people that are
in charge of running these mines need to be accountable. When there is
criminal conduct, they should get charged for a felony not a
misdemeanor. This is going to keep happening, because our laws say we
will protect you to these companies--not the miners.
How many more will go unpunished because of out of date laws that
go back to 1969?
If MSHA or the state finds problems at the mines, then give them
time to fix them. But when MSHA or the state comes back and
unwarrantable violations remain, then there needs to be a punishment to
the boss for not getting it fixed, and the punishment that we think
should be, is by losing his underground papers. If that doesn't work,
then pull the permits for the mine.
This state was afraid to touch Blankenship, so he was let go with
however he wanted to run this company.
My son and 28 others was just at work. They had no one protecting
them.
Please don't let their deaths be in Vain! And let another family be
destroyed.
There was a boss at UBB, Dean Jones, that wanted to bring his crew
out, not once but several times because they had no air.
He was told if you do, then bring your bucket and look for another
job.
This man and his crew stayed because he needed his job, even if his
life was in danger.
Because of these men being threatened, they are now dead.
Something also needs to protect these guys for calling someone for
help, because there is no help out there because they are afraid of it
getting to the company and being fired.
We asked you to change the law to get miners protection, but it was
shot down fast. It's up to all of you.
______

Mr. Walberg. Without objection.
Mr. Rahall. Thank you.
``There was a boss at UBB by the name of Dean Jones, who
perished, that wanted to bring his crew out. Not once, but
several times because they had no air. He was told if you do
so, then bring your bucket and look for another job. This man
and his crew stayed because he needed his job, even if his life
was in danger. Because of these men being threatened, they are
now dead.''
So I know you have touched upon this already, President
Roberts in response to an earlier question. And I know Ms.
Woolsey brought up the situation where there are no other jobs
and how these coal miners really need the good pay that is
associated with working in our underground mines.
But there is still something missing here when there is
that production factor put over the people factor, and over the
safety factor.
Perhaps if--and as I said, I know you have already
commented on the gist of this letter.
But could you relate to us what the inspections are like in
a union versus a nonunion mine.
Mr. Roberts. Thank you very much, and thank you for your
interest in health and safety for so many years, Congressman.
I would just like to follow up on the Edward Dean Jones. I
met his widow at the time we released our report. She is a very
young person.
And Mr. Jones did keep his men off the section because he
didn't think it was safe. And for that, he was told he would be
discharged if he didn't go up on the section and work in an
unsafe area.
If this management had listened to him, maybe we would have
more people alive today. And maybe this wouldn't have happened.
So we have good people everywhere trying to do the right
thing. If we just gave them a little more authority and a
little more power.
But there is a world of difference between an inspection in
a union mine and a nonunion mine; there are three minimum
health and safety committee representatives of the United Mine
Workers at every union mine.
They travel with the federal inspectors. They travel with
the state inspectors. And they have filed reports on their own.
They inspect the mines themselves at least four times a
year. And some places they inspect an entire mine every month.
So there is another set of eyes that being a representative
to workers in all the union mines. And that is not true at most
nonunion mines.
The protections that they have at the nonunion mines are to
federal inspectors, in some instances, the state inspectors. So
it is a world of difference.
Mr. Rahall. Thank you for that response.
Dr. Kohler, let me ask you.
Do you feel that you have sufficient personnel at NIOSH and
experienced personnel? And if so, how do you keep them with
you?
Dr. Kohler. Yes, the workforce challenge is spread across
the mining industry. They are not just confined to MSHA.
We experience them at NIOSH. The universities, the
operators, everyone is struggling to hire and recruit talented
personnel into mining.
Just to give you an example, MSHA and NIOSH both compete
for entry level mining engineers. A mining engineering student
coming out of WVU or Virginia Tech, or University of Kentucky
for example, starts somewhere around $65,000 to $70,000 a year.
We can offer that same graduating student $33,000 a year.
Now, it is easy to see the difficulty we have in competing.
It is a big, big problem.
Mr. Rahall. How do you suggest we remedy it besides more
pay?
Dr. Kohler. Yes, I think that if we want to be able to
recruit and retain competent people, we have to have
compensation schedules which don't necessarily match those
available outside of the government. But they have to close the
gap.
Mr. Rahall. We will never be able to--the public sector
would never be able to compete with the private sector.
Dr. Kohler. Not fully. But if we are serious about
recruiting and retaining quality people in these key positions,
something has to be examined and action taken.
Mr. Rahall. Thank you.
Thank you, Mr. Chairman.
Mr. Walberg. I thank the gentleman.
I now recognize the ranking member on Workforce
Protections, Ms. Woolsey.
Ms. Woolsey. Thank you, for closing remarks, no doubt?
Mr. Walberg. Yes, please. Thank you.
Ms. Woolsey. Thank you.
Well, it is clear that today we recognize that the entire
system failed the miners at Upper Big Branch. Past Congresses
should not have slashed funding for mine inspectors.
MSHA needed to do a better job. We, the bureaucracy
obviously needs to be scrubbed, to bring it into the 21st
century, but they didn't do anything on purpose.
And Massey exploited MSHA's weaknesses in the law. And they
hurt the workers.
This is the 21st century. Together in a bipartisan way, Mr.
Chairman, and it is your subcommittee that I am honored to be
the ranking member of,We have to put our heads together. We
have to ensure that we move into the 21st century, that we
enact meaningful reform.
Otherwise, we are not going to be honoring the lives or the
deaths of the 29 workers who spilled their blood in Upper Big
Branch. And we cannot let them be forgotten.
They should have taught us a lesson. If they didn't, then
we are dumber than nails. And we won't go forward. We will just
keep spinning in a circle talking about it until the next
disaster occurs.
I don't want that to happen. So let us work together so
that it doesn't.
I yield back.
Mr. Walberg. I thank the gentlelady. And certainly there is
a commitment to work toward fostering better results, better
safety.
The Mine Act, as you know, declares, and I quote from it,
``The first priority and concern of all in the coal or other
mining industry must be the health and safety of its most
precious resource, the miner.''
And I think in this room we understand that. There may be
differences of opinion and perception of facts in the way we
look at facts.
Certainly, we have seen evidence today that the funding
issue has continued to increase. Now, how that has worked out,
there may be question how we use it.
What bureaucratic problems we put in the way. What things
we neglect to encourage more.
In the opportunities we have had to visit mines together,
we have seen some best practices that are very useful in
promoting health and safety for workers, as well as promoting
economic stability for the mine itself. And I think we need to
capitalize on those things.
I appreciate the panel here in front of me, as well as
Director Main, Secretary Main, in being in front of us this
morning as well.
The questions that were brought up, comments that were
made, are helpful to making a final--I take that back--not a
final conclusion, but an ongoing conclusion of how we move
forward.
In making sure that this extremely important industry, with
people who do things that--I have already indicated to you I am
not a miner. I don't intend to be--other than mining for ways
of encouraging the mining industry, and those that work in it,
to foster a situation that moves our country forward.
That comes by carefully looking at the problems, looking
for solutions, and looking for ways that we can be as little--
as in the sense of being intrusive in the industry, but also
doing the proper oversight that makes sure that we all move
forward with safety and security.
I think the testimonies given today, the comments made,
will assist us in doing exactly what my ranking member said in
working out a suitable agreement in the not too distant future.
Having said that, there being no further business, the
committee stands adjourned.
[Additional submission of Mr. Andrews follows:]

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[Additional submissions of Mr. Miller follow:]

ALL CITATIONS AND ORDERS ISSUED BY MSHA FOR ADVANCE NOTICE
[April 1, 2010-April 12, 2012]
----------------------------------------------------------------------------------------------------------------
Operator/Contractor Violator
Coal or MNM Mine ID Mine Name Controller Name Name Type
----------------------------------------------------------------------------------------------------------------
Coal............................ 4608384 Seng Creek Alpha Natural Elk Run Coal Operator
Powellton Resources, Inc Company Inc
Coal............................ 4202074 Horizon Mine America West Hidden Splendor Operator
Resources, Inc Resources Inc
Coal............................ 1518522 Classic Mine Arch Coal Inc ICG Knott County Operator
LLC
Coal............................ 1518771 RB #12 Ben Bennett Manalapan Mining Operator
Co., Inc
Coal............................ 1512564 Straight Creek Ben Bennett Left Fork Mining Co Operator
#1 Mine Inc
Coal............................ 1518547 Onton #9 Chester M Advent Mining LLC Operator
Thomas
Coal............................ 3609549 Kimberly Run Citicorp RoxCoal, Inc Operator
Venture
Capital Ltd
Coal............................ 4609136 Broad Run Mine Coalfield Big River Mining Operator
Transport Inc LLC
Coal............................ 4404856 Buchanan Mine CONSOL Energy Consolidation Coal Operator
#1 Inc Company
MNM............................. 5400201 PROCAN Efrain S Productos De Operator
Daleccio Cantera Inc
Coal............................ 3609326 4 West Mine GenPower Dana Mining Company Operator
Holdings LP; of Pennsylvania
James L LLC
Laurita Jr
Coal............................ 3609371 Mine 78 J Clifford Rosebud Mining Operator
Forrest III Company
Coal............................ 3608603 Tracy Lynne J Clifford Rosebud Mining Operator
Forrest III Company
Coal............................ 1517903 Mine No.17 Jack H Ealy K and D Mining Inc Operator
Coal............................ 4407275 Wilson #2 James C Justice Virginia Fuel Operator
II Corporation
Coal............................ 1517478 #75 James River Blue Diamond Coal Operator
Coal Company Company
Coal............................ 4608812 Upper Cedar Joe Valis Glen Alum Operator
Grove No 4 Operations, LLC
Coal............................ 4609172 Mountaineer John B Preece West Virginia Mine Operator
Pocahontas Power, Inc
Mine No 1
MNM............................. 0504875 Crusher #4 John L Ary A & S Construction Operator
Co
Coal............................ 1512602 Highsplint Joseph T Harlan Cumberland Operator
Preparation Bennett Coal Company LLC
Plant
Coal............................ 1519455 Highsplint Joseph T Dixie Fuel Company Operator
Strip #2 Dixie Bennett LLC
25
Coal............................ 4609244 Randolph Mine Massey Energy Inman Energy Operator
Company
Coal............................ 4608436 Upper Big Massey Energy Performance Coal Operator
Branch Mine- Company Company
South
Coal............................ 1502057 Advantage #1 Metinvest B V Sapphire Coal Operator
Company
Coal............................ 4608878 Affinity Mine Metinvest B V Affinity Coal Operator
Company, LLC
Coal............................ 1517610 No 3 Minerva Ruth MRM Mining Inc Operator
Mead
Coal............................ 4609201 Eagle #2 Mine N/A Appalachian Contractor
Security Inc
Coal............................ 4609187 No 2 Deep Mine N/A Ft Division Lst Contractor
Trucking
Coal............................ 4609073 Sugar Maple N/A J & N Trucking Contractor
Mine
Coal............................ 4607908 Big Mountain No Patriot Coal Pine Ridge Coal Operator
16 Corporation Company LLC
Coal............................ 4609073 Sugar Maple Patriot Coal Gateway Eagle Coal Operator
Mine Corporation Company, LLC
Coal............................ 4609201 Eagle #2 Mine Patriot Coal Rhino Eastern LLC Operator
Corporation;
Rhino Resource
Partners LP
Coal............................ 1518911 Mine #28 Rhino Resource CAM Mining LLC Operator
Partners LP
Coal............................ 4608570 Coalburg No 2 Richard H Rio Group, Inc Operator
Mine Abraham
Coal............................ 4406499 Dominion No 7 Sunoco, Inc Dominion Coal Operator
Corporation
Coal............................ 4406868 No 6 Susie A Smith; A B & J Coal Operator
Elmer Fuller Company, Inc
----------------------------------------------------------------------------------------------------------------
Source: MSHA.

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Orgas, WV, March 29, 2012.
Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
Education and Workforce Committee, U.S. House of Representatives,
Washington DC 20515.
Dear Chairman Kline and Ranking Member Miller: This letter is
submitted to the Committee with respect to the hearing entitled
``Learning From the Upper Big Branch Tragedy'' on March 27, 2012.
Bear with me a moment and imagine that the following happens:
I gather all of Congress into a room and tell you that your offices
are being moved from the Capitol Complex. I am the new boss and this is
what I would explain to you about your new workplace:
``Your new office is not like where you work now.
First, there is a chance that an odorless gas might leak into your
new office and it could kill you, but, just in case, I will give you a
breathing apparatus designed to save you IF you locate it in time. One
person will have a device that reads the levels of this gas and the
oxygen levels but that device will only work IF he or she is actually
using it. Let's not forget that they will be keeping records in two
separate books, but that's just between us right?
Next, there is a slim chance that the walls could cave in or the
roof could collapse, but that's so remote that we won't worry about it.
In fact, just part of the roof could cave in, but please don't concern
yourself with that either.
Now I know it sounds bad, but really, it's dark in there so you
won't have to see the walls buckling and you should feel safe. I will
provide a light for you so that you can do your job, and please ignore
the sounds of things falling because it will only distract you from
your job.
No one is claustrophobic or afraid of the dark, right? And bugs,
snakes and rats don't bother you either correct?
Oh, and let me tell you this too, there is a chance that there
could be an explosion. Don't get excited, I don't want to alarm you.
That rarely happens and if it does, well, there is usually time to get
most of you out of the building before you get trapped or die. An
explosion is rare and is usually in a confined area of the building, so
you could be in a pretty safe area and not be affected at all! In fact,
you will probably be safe enough to go to the funerals of your friends.
But you can only go to these funerals on your ``off'' time. You aren't
allowed to go if it happens during your normal work hours.
Now most importantly, if you should happen to see something that is
unsafe and could endanger your life, please don't tell anyone! If you
do, you will be fired. Your life is forfeit to me and my company. You
just aren't as important as me as my profits. I can always find another
person to fill your job, so if you don't like how I'm running things,
you can just grab your jacket and leave. I'll pay you more than your
contemporaries, but I'm not buying your loyalty or your silence. I know
you can't work for anyone else and make this kind of money. Go ahead--
try and survive and support your family without this job and this
paycheck. Not that it's all about money, right?''
I know this sounds like a poorly written script for a B-Movie. And
it's too weird to be fiction, isn't it?
I doubt there is even one member of Congress who would even think
about working in the environment described above and yet they want
every coal miner to work in these conditions and under the threat of
silence. If it's too good for the members of Congress, why is it
expected and allowed for coal miners?
And do you want to know what's worse? Knowing that the person you
love is going into that situation every day, every shift and while
there, they are demeaned and devalued and that black rock is more
important than their safety and their life.
What makes this worse yet is that some members of Congress are very
aware of this because they are sitting in Congress simply because Mr.
Blankenship ``donated them into office''. I hope you are ashamed--you
know who you are. I hope you never know the fear that a spouse feels
when they watch their loved one leave the house to begin a shift in a
mine. It paralyzes the soul and yet there is NOTHING any spouse can do
but pray for their loved one's safety.
When April 5, 2010 exploded into my life (pun intended), I needed
my husband to hold me while I shook uncontrollably, comfort me, to tell
me things would be ok and to give me mental strength when I thought I
would snap. But he couldn't do that because he was at that mine, dying
on the inside and changing into a man who is tortured every single day
he is alive.
I have watched an active, healthy outdoorsman disappear into
himself and disconnect with the world and stop doing the things that
made him happy. I've watched him stop caring about himself, stop caring
about hunting and fishing, stop caring about his kids, me, stop caring
about his life. I do my best to comfort him when he awakes from
nightmares or breaks down when he's assaulted by memories of that day.
Massey Energy killed the man I love on a level that most people
don't understand. His body is here, but he is not the same man. He's
changed simply because the poorly written script from above wasn't
fiction for him. This was his reality every day and it killed his
spirit.
I want to ask Congress why it is okay that conditions are allowed
to be this way. Why can't Congress see it's not Democrat against
Republican? Isn't it your job? Weren't you elected, in part, to protect
Americans?
Stop looking to each other and pointing fingers to distract the
public from the real situation that occurred at Upper Big Branch Mine
April 5, 2010. Massey Energy ignored the laws. Mr. Blankenship
flagrantly flaunted his power and did as he pleased to insure huge
profits and put lives in danger for that profit.
It's time for our Congress, and that's everybody's Congress--we
voted for you, to unite and regain your power to make stronger laws to
protect miners who put their lives in danger every shift produce coal
for the American economy.
Let's be honest, Massey imploded due to their own self-important
leader, but Congress needs to take on the role of leaders again. You
need to make the changes you were elected to make to keep AMERICANS
safe. It's too late for my husband, it's too late for the 29 men who
died April 5, 2010, it's too late for the countless family members who
lost someone in the mines. But it's not too late for the men and women
who are working now and it's not too late for future miners many of
whom are our children.
My husband begged you to put aside partisanship to make changes
when he spoke before Congress and I'm begging you now to follow through
on the promises you made to the American people to work together for
the safety of American workers, most particularly miners.
Mindi Stewart,
wife of UBB Survivor Stanley ``Goose'' Stewart.
______

MSHA News Release, Feb. 29, 2012

MSHA Announces Results of January Impact Inspections

Arlington, VA--The U.S. Department of Labor's Mine Safety and
Health Administration today announced that federal inspectors issued
253 citations, orders and safeguards during special impact inspections
conducted at 12 coal mines and four metal/nonmetal mines last month.
The coal mines were issued 171 citations, 15 orders and two safeguards,
while the metal/nonmetal operations were issued 64 citations and one
order.
These inspections, which began in force in April 2010 following the
explosion at the Upper Big Branch Mine, involve mines that merit
increased agency attention and enforcement due to their poor compliance
history or particular compliance concerns, including high numbers of
violations or closure orders; frequent hazard complaints or hotline
calls; plan compliance issues; inadequate workplace examinations; a
high number of accidents, injuries or illnesses; fatalities; and
adverse conditions such as increased methane liberation, faulty roof
conditions and inadequate ventilation.
As an example from last month, on Jan. 13, an impact inspection was
conducted during the second shift at Perry County Coal Corp.'s E4-1
Mine in Perry County, Ky. The inspection team, which captured and
monitored the phones to prevent advance notice of its arrival, issued
35 citations and three orders. The mine's last impact inspection,
conducted in May 2011, had resulted in 27 citations and one order.
Following January's inspection, the mine was issued unwarrantable
failure orders for noncompliance with the ventilation plan by failing
to maintain a sufficient air volume at the end of the wing curtain when
more than 18 inches of rock is being mined. (A wing curtain is a piece
of flame-resistant brattice cloth used to direct air current to
temporarily ventilate faces, seals or other areas of the mine.) This
violation exposed miners to the risk of silicosis, black lung and a
potential explosion. The mine operator also failed to control draw rock
that extended from 32 crosscuts outby to the working face
(approximately 2,080 feet), which exposed miners to the risk of being
struck, injured or killed by pieces of falling roof. The mine operator
further failed to maintain a scoop in permissible condition so that it
was not a potential ignition source for explosive gasses as well as to
conduct an adequate weekly examination of the same scoop.
Inspectors also found that the primary and secondary escapeways,
along with required lifelines, were improperly maintained, which could
severely hamper miners' efforts to evacuate the mine in the event of an
emergency.
As a second example from last month, on the same day, MSHA
conducted an impact inspection during the second shift at K and D
Mining Inc.'s Mine No. 17 in Harlan County, Ky. The inspection team,
which captured and monitored the mine phones, issued 21 citations and
seven orders. The last impact inspection conducted at this mine had
occurred in August 2010, resulting in 14 citations and six orders.
During January's visit, inspectors observed eight conditions that
were the result of unwarrantable failures by the mine operator. Six
involved failure to maintain the conveyer belts in safe operating
condition and accumulation of combustible materials along the belt
lines. Two belt lines were found to have missing or stuck rollers,
causing friction and creating the potential for an ignition.
Accumulations of combustible material were found along three belt
lines, which are required to be examined at each shift.
Two 104(d) withdrawal orders were issued for the mine operator's
failure to conduct an adequate exam of the section power center, which
was found to be improperly maintained. Inspectors found evidence of
severe arcing between receptacles on the power center, as well as on
the male plugs of electrical equipment.
The mine operator also failed to comply with the roof control plan,
according to inspectors. They observed a hill seam (rock fissure) that
was tied in with several stress cracks. The hill seam and stress cracks
extended across the pillar line for a distance of approximately 115
feet. The mine operator had not installed additional support as
required by the roof control plan.
``While the impact inspection program has resulted in improved
compliance in mines across the country, the seriousness of the
violations found at these two operations demonstrates why targeted
enforcement continues to be necessary to protect the health and safety
of miners,'' said Joseph A. Main, assistant secretary of labor for mine
safety and health.
Since April 2010, MSHA has conducted 403 impact inspections, which
have resulted in a total of 7,162 citations, 718 orders and 26
safeguards.

Editor's note: A spreadsheet containing the results of impact
inspections in January 2012 accompanies this news release.
______

U.S. Department of Labor News Release, March 28, 2012

MSHA: Advance Notification of Federal Mine Inspectors
Still a Serious Problem

Arlington, VA--Despite stepped-up enforcement efforts over the past
two years by the U.S. Department of Labor's Mine Safety and Health
Administration, some mine operators continue to tip off their employees
when federal inspectors arrive to carry out an inspection. The Federal
Mine Safety and Health Act of 1977 specifically prohibits providing
advance notice of inspections conducted by MSHA.
There have been several recent instances in which MSHA has been
able to detect the occurrence of advance notice. For example, on March
22, agency inspectors responded to a hazard complaint call about
conditions at Gateway Eagle Coal Co. LLC's Sugar Maple Mine in Boone
County, W.Va. A truck driver with J&N Trucking reportedly alerted mine
personnel by citizens band radio of the inspectors' arrival. The
inspection turned up 14 violations for advance notification,
accumulations of combustible material, and inadequate preshift and on-
shift examinations, as well as a failure to comply with the current
ventilation plan, maintain the lifeline, maintain permissibility of
mobile equipment and maintain fire fighting equipment.
As a second example, during a Feb. 29 inspection at Rhino Eastern
LLC's Eagle No. 2 Mine in Wyoming County, W.Va., a dispatcher's
decision to shut down the belts prompted a call from the section
foreman about his actions. The dispatcher responded that an MSHA
inspector was at the mine. During this inspection, three citations were
issued for failure to comply with the roof control and ventilation
plans. In addition, a citation was issued to Applachian Security, a
contractor, for providing advance notification of the MSHA inspection.
Rhino Eastern's Eagle No. 1 Mine was placed on potential pattern of
violations status in November 2010 and again in August 2011 after a
miner was killed in a rib collapse, and the mine's compliance record
deteriorated.
A third example is from Feb. 13, when the dispatcher for Metinvest
B V's Affinity Mine in Raleigh County, W.Va., notified the belt foreman
over the mine telephone that federal and state inspectors were headed
underground. The mine operator was issued a citation and, to abate it,
MSHA required that all certified foremen and dispatchers be trained in
the requirements of the Mine Act regarding advance notification, and
that a notice be conspicuously posted in the mine office to ensure
future compliance with the Mine Act.
``Providing advance notice of an inspection is illegal,'' said
Joseph A. Main, assistant secretary of labor for mine safety and
health. ``It can obscure actual mining conditions by giving mine
employees the opportunity to alter working conditions, thereby
inhibiting the effectiveness of MSHA inspections. Furthermore, it
appears that current penalties are not sufficient to deter this type of
conduct.''
Upper Big Branch Mine superintendent Gary May recently entered into
a plea agreement with the U.S. Department of Justice, admitting to
conspiracy to give advance notification of mine inspections, falsify
examination of record books and alter the mine's ventilation system
before federal inspectors were able to inspect underground. May
testified that, through these unlawful practices, the mine operator was
able to avoid detection of violations by federal and state inspectors.
``Despite the attention to the issue that has resulted from the
Upper Big Branch investigation and recent testimony from Gary May,
advance notice continues to occur too often in the coalfields,'' said
Main. ``Upper Big Branch is a tragic reminder that operators and miners
alike need to understand advance notice can prevent inspectors from
finding hazards that can claim miners' lives.''
______

[Questions submitted for the record and their responses
follow:]

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Assistant Secretary Main's Response to Questions Submitted for the
Record

question from representative noem
1. Assistant Secretary Main, in October 2011 you stated that the
Mine Safety and Health Administration (MSHA) was working with the
Federal Railway Administration (FRA) on a Memorandum of Agreement (MOA)
to clarify jurisdictional issues for operators when a railroad carrier
enters mine property or has facilities and equipment on mine property.
What is the status of the MOA?

Mr. Main: MSHA expects to execute an MOA with the FRA over the next
couple of months. We know that an agreement between the two agencies is
of great interest to many members of Congress; please be assured that
MSHA is working diligently with the FRA to finalize an MOA that
properly reflects the jurisdictional authority of each agency, as
defined by our respective governing statutes.
questions from ranking member miller
2. According to the MSHA Upper Big Branch (UBB) Internal Review, a
lack of inspector experience allowed violations at the mine to go
undetected. You testified that more than half of MSHA's inspectors were
hired after 2006, and due to the lack of staff, MSHA District 4 (which
covers southern West Virginia) employed only 2 ventilation specialists
at times during the 18 month period prior to the UBB explosion. The
average experience level for enforcement personnel dropped from 12
years to only 5 years between FY 2005 and FY 2010. In light of MSHA's
findings in the Internal Review and the consequences of an experience
gap, please address each of the following:
A. Please provide the number of mine inspectors, supervisors and
technical specialists MSHA estimates will be eligible to retire during
FY 2013 and FY 2014.

Mr. Main: In FY 2013, 350 Coal and Metal Non Metal inspectors, 51
engineers (technical specialists) and 146 supervisors will be eligible
for retirement. Our estimates for FY2014--432 Coal and Metal Non Metal
inspectors, 62 engineers and 166 supervisors--include the FY 2013
numbers. However, based on historical attrition data, MSHA expects that
only about 20 percent of the employees who are eligible to retire
actually retire in the year they become eligible.

B. What steps is MSHA taking in succession planning, including with
respect to identifying future resource requirements, to ensure that the
agency does not have a shortage of trained enforcement personnel and
technical specialists as its more experienced and older personnel
retire. When will MSHA's succession plan be completed?

Mr. Main: MSHA has been engaged in planning for the Agency's future
for a number of months. This planning has included a consideration of
the UBB Internal Review Report's findings on MSHA's staffing
deficiencies. The draft FY 2012-2016 Succession Management Plan goes
beyond a succession planning approach that focuses on simply replacing
individuals, and instead engages in broad, integrated succession
planning and management efforts that focus on strengthening both
current and future organizational capacity. The draft plan uses a
systematic approach to filling our mission-critical occupations and key
leadership positions over the next several years.
The plan includes a detailed workforce analysis to project levels
of attrition in our enforcement programs looking out five years. In
addition, in order to find gaps in our workforce, managers in each
program identified trends likely to affect their programs' delivery of
services, and we reviewed data describing the competencies that our
workforce needs to address. The draft plan is in the final stages of
review and we anticipate a summer 2012 completion.

C. Do personnel rules allow MSHA mine inspectors to earn more than
MSHA technical specialists (such as engineers), because unlike
technical specialist mine inspectors are able to earn overtime pay and
engineers do not? What can MSHA do to more effectively compete with
private industry which can lure and hire away from MSHA experienced
ventilation and roof control engineers because they can afford more pay
and better benefits. What retention tools are available to MSHA? Are
there gaps in these tools MSHA needs to solve this problem?

Mr. Main: Mine Inspectors are generally entitled to standard
overtime compensation under the Fair Labor Standards Act, while
engineers generally are not. The U.S. Office of Personnel Management
(OPM) administers the provisions of the Fair Labor Standards Act with
respect to Federal employees. A non-exempt determination for engineers
therefore may require coordination with OPM. We are in discussions
within the Department of Labor to determine our options for a possible
non-exempt determination for specific engineering positions within
MSHA.
MSHA is expanding its recruitment efforts at various universities
and colleges, including engineering schools, to attract potential
candidates. This collaborative effort between MSHA's Human Resources
Department, Office of Diversity and Equal Opportunity, and program
areas will enhance the ability to attract and retain a diverse and
highly qualified pool of candidates to fill mission-critical
occupations. In the past, MSHA has not taken full advantage of the
recruitment and retention tools at its disposal. However, MSHA is now
increasing its utilization of recruitment and retention incentives--
such as relocation incentives and recruitment and location bonuses--
that Congress provided to enable the Federal agencies to address
exceptional needs to recruit, retain, and relocate essential employees
for critical positions. MSHA also has the ability to offer students
loan repayments and intends to use this tool in our efforts to recruit
those still in school.

3. Between 2006 and 2010, contested citations in District 4 rose
from 339 to 19,618, according to the Internal Review. Because the
District 4 office was understaffed, it was unable to manage this
increased paper flow, and filing deadlines were sometimes missed.
Missed MSHA deadlines led to additional litigation. In light of the
Internal Review's findings and concerns about the staffing level of
MSHA's District 4 operations, please address each of the following:
A. Are District 4 and the newly created District 12 staffed
adequately at this time to manage the flow of enforcement-related
paperwork and meet filing deadlines? If not, what additional resources
are needed?

Mr. Main: The UBB disaster underscored the need to address the
growing backlog of contested cases at the Federal Mine Safety and
Health Review Commission (FMSHRC), especially those cases in District
4. I cannot overstate the importance of the continued funding that
Congress is providing DOL to resolve this backlog.
MSHA has made a number of changes that are also helping in managing
contested cases. In June, 2011, MSHA split District 4 into four
separate districts. This has enabled us to divide the caseload among
those districts and increase the size of our staff handling these
cases. As of March 31, 2012, District 4 had four Conference Litigation
Representatives (CLRs) and two clerks; District 12 had two CLRs and two
clerks. There is currently an opening for another CLR in District 12.
MSHA has already selected a candidate to take that position and is in
the final stages of hiring that individual. Once this position is
filled, MSHA will have twice as many CLRs in the Southern West Virginia
area as it did in the months leading up to UBB.
In addition, MSHA has hired two full-time coordinators located in
Headquarters to manage the Alternative Case Resolution (ACR) program in
the Districts. The coordinators have been identifying districts with
the greatest backlogs, allowing us to transfer a significant number of
cases in these districts to the backlog project. In April and the first
part of May, Districts 4 and 12 will have transferred 250 cases.
Finally, Alpha Natural Resources has withdrawn its contest of over
4,416 violations (754 cases) involving legacy Massey companies pending
in Districts 4 and 12, and paid over $15 million in assessed penalties
(the full amount assessed). As a result of these actions, District 4
and District 12 have the current ability to manage the flow of
enforcement-related paperwork and meet filing deadlines. Without the
continuation of backlog funding from Congress, it is unlikely that
District 4 and 12 would be able to manage their case load.

B. Do any other MSHA Districts have staff shortages that impair
their ability to manage the flow of enforcement-related paperwork and
meet filing deadlines? If so, which Districts are impacted?

Mr. Main: At their current staffing levels, and because they have
also been able to transfer cases to the backlog project, the other MSHA
districts are able at this time to manage the flow of enforcement-
related paperwork and meet filing deadlines. Any reduction in funding
or staffing levels would seriously compromise the Districts' ability to
meet their deadlines. Continuing the funding provided through Congress
is essential and allows MSHA to maintain proper staffing of CLRs and
support staff to effectively address the contested cases.

4. Does the Robert C. Byrd Mine Safety Protection Act (H.R. 1579)
meet MSHA's stated need for additional enforcement authority and tools
to prevent mine disasters such as the Upper Big Branch tragedy? If not,
what additional tools are needed?

Mr. Main: As I testified at the March 27, 2012 hearing, since the
tragedy at UBB, MSHA has learned how to better use all of its available
tools and strategies to fully enforce the Mine Act--including targeted
enforcement, regulatory reforms and compliance assistance. Since April,
2010, MSHA has conducted over 420 impact inspections of mines that
merit increased agency attention and enforcement due to their poor
compliance history or particular compliance concerns. During many of
these inspections, MSHA monitored the phones so that those underground
cannot be notified to clean up hazards before MSHA inspectors have an
opportunity to observe them. Sadly, we are finding that there are still
operators who continue to flout the law and put miners at risk.
MSHA cannot be at every mine all the time, and as we have learned
from various investigations into UBB, even when MSHA is present at a
mine, a determined operator that intimidates miners and willfully
engages in a pattern of subterfuge will be at least partially
successful in hiding hazardous conditions and practices from MSHA, with
potentially tragic results. We need to change the culture of safety in
some parts of the mining industry, so that operators are as concerned
about the safety of their miners when MSHA is not looking over their
shoulders as when MSHA is there.
The Robert C. Byrd Mine Safety Protection Act contains provisions
that address these gaps in MSHA's enforcement powers.
Upon request by members of Congress, including members of this
Committee, we have provided and will continue to provide technical
assistance for this and other mining legislation. It is imperative that
Congress enact legislation that gives MSHA the additional tools it
needs to improve the health and safety of all the nation's miners.
______

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[Editor's Note: As of September 26, 2012, there has been no
response to questions submitted from Dr. Kohler.]
[Whereupon, at 12:52 p.m., the committee was adjourned.]