[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
BUILDING A BETTER PARTNERSHIP: EXPLORING THE MINE SAFETY AND HEALTH
ADMINISTRATION'S REGULATION OF SOUTHERN APPALACHIAN MINING
=======================================================================
FIELD HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JUNE 21, 2013
__________
Serial No. 113-46
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas MARK POCAN, Wisconsin
DOC HASTINGS, Washington TAMMY DUCKWORTH, Illinois
CYNTHIA M. LUMMIS, Wyoming ROBIN L. KELLY, Illinois
ROB WOODALL, Georgia DANNY K. DAVIS, Illinois
THOMAS MASSIE, Kentucky PETER WELCH, Vermont
DOUG COLLINS, Georgia TONY CARDENAS, California
MARK MEADOWS, North Carolina STEVEN A. HORSFORD, Nevada
KERRY L. BENTIVOLIO, Michigan MICHELLE LUJAN GRISHAM, New Mexico
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on June 21, 2013.................................... 1
WITNESSES
Mr. Sam Bratton, President, North Carolina Aggregates Association
Oral Statement............................................... 10
Written Statement............................................ 13
Mr. Mack McNeely, Vice President, LBM Industries and Nantahala
Talc and Limestone
Oral Statement............................................... 18
Written Statement............................................ 20
Mr. Jeff Stoll, Safety and Health Manager, the Quartz Corporation
Oral Statement............................................... 28
Written Statement............................................ 30
Mr. Marvin Lichtenfels, Deputy Administrator for Metal/Non-Metal,
Mine Safety and Health Administration
Oral Statement............................................... 47
Written Statement............................................ 49
APPENDIX
A Letter from Cherie Berry Submitted for the Record by Rep.
Meadows........................................................ 76
A Statement by Rep. Virginia Foxx Submitted for the Record by
Rep. Meadows................................................... 78
A Statement for the Record by C. Howard Nye, Martin Marietta
Materials, Submitted by Rep. Meadows........................... 79
A Statement for the Record by the National Stone, Sand and Gravel
Association (NSSGA)............................................ 80
MSHA's Response to Questions the Committee on OGR Submitted for
the Record..................................................... 84
Pictures of Frayed Seat Belt..................................... 89
Letters and emails from Caterpillar (and Dealer, Carolina Cat)
Regarding Safe Access/Fall Protection.......................... 92
BUILDING A BETTER PARTNERSHIP: EXPLORING THE MINE SAFETY AND HEALTH
ADMINISTRATION'S REGULATION OF SOUTHERN APPALACHIAN MINING
----------
FIELD HEARING
Friday, June 21, 2013
House of Representatives
Subcommittee on Government Operations
Committee on Oversight and Government Reform
Washington, D.C.
The subcommittee met, pursuant to call, at 9:38 a.m., in
Mitchell County Historic Courthouse, 11 North Mitchell Avenue,
Bakersville, NC, Hon. John L. Mica [chairman of the
subcommittee] presiding.
Present: Representatives Mica and Meadows.
Also Present: Representatives Roe and Griffith.
Staff Present: Joe Brazauskas, Counsel; John Cuaderes,
Deputy Staff Director; Linda Good, Chief Clerk.
Mr. Mica. Good morning. I would like to welcome you to the
Subcommittee on Government Operations hearing this morning. We
are pleased to be in Bakersville, North Carolina. The topic of
today's subcommittee hearing is Building a Better Partnership:
Exploring the Mine Safety and Health Administration's
Regulation of Southern Appalachian Mining.
I am Congressman John Mica. I am privileged to chair the
Government Operations Subcommittee of the United States House
of Representatives' full Committee on Government Oversight and
Reform.
I am joined today by actually the Vice Chairman of our
panel, and we are an investigative body of Congress, the chief
investigative panel of the House of Representatives' Oversight
and Reform Committee, and our specific Subcommittee on
Government Operations has very broad jurisdiction to
investigate various waste, fraud, abuse, and programs of the
Federal Government. The Vice Chair of that subcommittee, as I
said, is the congressman from this district in North Carolina,
Mark Meadows. We would not be here if it wasn't for his
request. Each of the subcommittee members do get the
opportunity to choose the topics that need review by the panel,
and Congressman Meadows requested that I conduct this hearing
and this review of mine safety, which is particularly
important, as you know, to this district and this state, and to
the country.
So we are pleased to be here at his request, and also have
him. He is a member and now a leader of the committee. That is
pretty good, too, considering I think this is his first term to
be the Vice Chair of a subcommittee of Congress. So, thank you
for your invitation and also fine work. We will report back to
his citizens.
Being the most senior member of the panel, you wake up one
day and you find out that everybody to you is your junior. But
after 21 years on this committee I have seen many members, and
we are very pleased with the quality of your representative and
his participation, full participation and commitment that he
has provided to our committee. So, I thank him again for his
work and his leadership role.
Before getting down to business, I think I will first
introduce--actually, this is quite an historic gathering. I
can't remember a field hearing where we had four members from
four different states. I am from Florida. In addition to the
representative from North Carolina, we are also honored to have
with us a very distinguished member from Tennessee, right
across the way, Dr. Phil Roe. I have had the opportunity to
work with him. He is a member of the Education Workforce
Committee, and also the Veterans Affairs Committee, and he
serves on one of the oversight and investigations panels and
chairs the Subcommittee on Health, Employment, Labor, and
Pensions. So it is quite fitting that we are joined by a nearby
colleague of Mr. Meadows in this district. So welcome, Dr. Roe,
Congressman Roe, to this historic district.
And then again, we are joined by a Virginia congressman,
Morgan Griffith. He is a member of the House Energy and
Commerce Committee, and the subcommittees on health, energy,
power, and also part of an oversight and investigations panel
in that particular subcommittee.
I want to welcome both Representative Griffith and
Representative Roe. Since they are not members of this panel, I
ask unanimous consent that both be allowed to participate in
this subcommittee hearing. Without objection, so ordered.
So the order of presentation and business this morning will
be opening statements by members, and I will begin that
process. Then I will yield to the Vice Chair, Congressman
Meadows, Mr. Roe, and then Mr. Griffith.
Then we have two panels, I believe, this morning. First we
are going to hear from the panel that is assembled, and then we
have another panel consisting of one witness.
So that will be the order of business today. And with that,
I will begin my few opening remarks.
Again, I thank Mr. Meadows for your leadership and for
having us in your district, this beautiful area of North
Carolina, and also the United States. My family and I had an
opportunity over the years to visit Mitchell County and spend a
lot of time over in Spruce Pine in a place called Don's. I
think they used to have a double cheeseburger ----
[Laughter.]
Mr. Mica. I think that was one of the great losses. Also, I
think Mr. McHenry had that area first. I practically had tears
in my eyes after he told me that Spruce Pine was a core of that
mountain some years ago. It is a great area, and I am pleased
to be here in the county seat.
The purpose of our committee, again, that I will touch
briefly in my introductory remarks, is the chief investigative
panel of the House of Representatives. The history of this
committee, the Government Oversight and Reform, I think you
have probably seen Mr. Meadows and myself. Most recently we
have been kind of jammed on scandals in Washington. I am trying
to remember where we left off, Mark. We started on Benghazi,
and then we got shifted to IRS, and it looks like we have NSA
around the corner, but this panel is very important.
The Founding Fathers were always skeptical of government,
having come from colonial status where the parliament and the
king had imposed a lot of restrictions on their life and
freedom and their rights. In fact, it is kind of interesting if
you look at the Declaration of Independence, you find they are
declaring at the very beginning independence from England and
the parliament and the king, but then most of the Declaration
is citing the abuses of the British government, the king and
the parliament. It is kind of funny. If you read through some
of that, it is almost like why we are here today.
One of my favorites is he sent out his agents among us to
harass and give, at that time, the colonists a rough time with
bureaucracy and government. From that time forward, I think the
evolution of our government and our agencies has been to try to
keep government under control and sort of at bay. People had
always sought freedom and independence and supported enterprise
and production of the individual.
But that is--part of the history of this panel was they
started Congress and had authorizers and appropriators, some of
whom created the programs. It started with the Constitution,
the Congress, and we create the programs through authorizing
committees, and then we also fund them through appropriating
committees.
Well, the Founding Fathers, way back as early as the
beginning of creating any of these government agencies, never
really trusted the authorizers and appropriators and created
the predecessor of our committee, which is Government Oversight
and Reform. And they wanted to check to see how the programs
were working, how the money was spent, and delegate the intent
of Congress.
So that, briefly, is the background of how our committee
evolved to today and the reason we are here. So when you are
trying to raise your family, make a living and survive all the
various activities that government at various levels imposes on
you, our job is to represent you and again make certain that we
get it right.
So with that background on the committee, today's topic is
mine safety, and it is incredibly important to the economy of
this community and this state, as I said, and that is why Mr.
Meadows brought us here. Just driving through here from Spruce
Pine, if you can't see the importance of mining to this region,
you must have your blinders on or your shades are down. But
this is a very active mining area for the state, and it is
important I think that we strike a balance between promoting
safety, which everyone is encouraged to make certain we get
right, but also the balance of being able to conduct commerce
and do both in a positive fashion.
So today we are going to hear from three metal mining
operators in North Carolina, and they are going to tell us some
of their stories about the way our Federal Mine Safety and
Health Administration has impacted their business. We will hear
again about some of the problems related to enforcement
practices and other issues that have proven difficult sometimes
for them to conduct their business and industry under our mine
safety agency. It is an important agency and it has an
important goal in ensuring that mines and miners are safe and,
again, that people are secure in their employment and safety.
However, the mine safety agency, like many Federal
agencies, is a powerful government agency. They have the
responsibility to conduct inspection of every metal and
nonmetal mine two times a year. During these inspections,
agents can write citations for violations, as we have heard,
and they can also impose penalties on the mine operators.
We should also note that this Federal agency can enter a
mine property at any time if the agency feels it should under
the law. So it has a lot of discretion in entering and
monitoring the activities and businesses of mining. Of course,
there will always be a friction between the regulators and the
folks that they regulate. What we try to do is sort it out and
achieve some balance.
However, it should be the goal of a Federal agency such as
the mine safety agency to partner with the community to work to
achieve a common goal of providing a safe workplace and
environment, and also a thriving mining industry. Once you
close the mines down and people aren't working, you don't have
to worry about regulating an industry or people working.
However, the past eight years has been a change in the
philosophy of the mine safety agency, and we want to examine
again what is taking place and see if fairness prevails for all
parties concerned. Since 2005, the total citations have
increased some 550 percent, and that is something also we want
to look at today.
We believe also that some of the folks that have received
these fines, may have done so in an inordinate amount of fines.
And also, again, we heard about the significant increase in the
fines. So I think that is something else we need to review in
this hearing today and see if we have gotten out of balance in
the whole process.
Moreover, I called this hearing to allow operators from
North Carolina to tell Congress and their representatives how
they feel the mine safety agency has operated. I will ask them
and hear from them about how they feel it has worked with them,
the authority granted by Congress, and again see what makes
sense and how we can both be responsible with safety but also
have a balance that allows us to continue to have this industry
thrive and the business succeed.
So I want to thank the witnesses for being with us today. I
am particularly grateful we have two other states represented,
and the representatives of two nearby districts joining us.
Now what I will do is I will yield to our Vice Chair and
thank him again for his leadership. He is a special kind of guy
and has a business background like myself, and I think he gets
it. He also, I will have to say, got us here this morning, and
we are delighted to be here.
So I will yield to the gentleman from North Carolina, our
Vice Chair, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman. You have got to be
coming here to get here, and so it is a real encouragement just
to see your involvement, and I want to start off first by
saying thank you for being here, truly for showing up on this
important issue. I thank the witnesses for coming today and
being willing to testify and take time out.
Mining is a critical part of North Carolina's economy. We
have over 800 mining permits throughout the state and over
100,000 acres. It brings in directly $1 billion in revenue, and
if you take that out in terms of the total economy, the effect
of mining is somewhere around $3.5 billion.
It accounts for over 10,000 jobs directly, and the indirect
implications that we know, obviously here in Mitchell County,
but throughout the district, some 27,150 indirect jobs as part
of the mining industry. And these are not low-paying jobs. The
average salary in the mining industry is right at $50,000. So
these are good-paying jobs that are good for the economy.
But I also want to talk about the importance of mining just
a little bit because some of the people may not know how
critical it is. Crushed stone, obviously, is one of our major
raw materials that we look at. But that is not the only thing
that we mine. Ninety percent, 90 percent of the world's high-
quality quartz comes from western North Carolina. In addition
to that, some 60 percent of the United States' feldspar comes
from North Carolina, as well.
And in addition to that, some of the clay and other bricks
used--and we get an unbelievable amount of resources that come
from western North Carolina. So the aggregates industry plays a
huge role in our economy. Sand and gravel, as we start to look
at it, we have people here who will be testifying to that
point, the construction of highways and roads, not only in
North Carolina but across America. As a former developer, I
know firsthand how critical that is, having access to that. One
of our people here, we have used their product here, Mr.
McNeely. As he testifies, he had a quarry very close to some
property that I own.
But since coming to Washington, I have heard from not only
many mine operators that are experiencing problems, but before
I got there I heard story after story saying, you know, you
really need to look into that.
So we want to make sure that we provide a safe working
environment. This is not about doing something in an unsafe
manner. But we also need to make sure that regulations don't
overburden what we have. MSHA has an important job of keeping
our miners safe, but what I have been hearing, and we look
forward to hearing testimony today, is really kind of a
direction that has changed from training to more of
enforcement.
We called this hearing today, Mr. Chairman, both to hear
directly from the North Carolina mine operators what the impact
of MSHA on their businesses has been so that they can tell
their stories, the frustrations they have dealing with Federal
agencies and whose philosophy seems to sort that out. But we
are not asking necessarily MSHA to relax their standards as
much as they are as providing a consistent standard for safety,
something that we can hear as we were looking at things. It is
knowing that standard and knowing that that standard is fair
and how we are able to deal with that, and that it doesn't hurt
jobs ultimately because that is what it is all about.
We are pleased today to have representatives from MSHA
here. We look forward to hearing your testimony as well in
terms of maintaining safety.
But at this time, I would like to take the opportunity to
thank Chairman Mica for calling this hearing and coming to my
district. At the beginning of Congress, I told the Chairman how
important this issue was to my people back home, and in an
environment where a lot of times people don't listen, the
Chairman said, well, if it is that important, we need to have a
hearing and shed some light on some of that, so he is here
today to do that. So I wanted to thank the Chairman.
Also, I want to personally thank Chairman Congressman Roe
from Tennessee who has been a good friend early on. He
understands these issues. I am humbled by this because I am on
a panel today with three chairmen of subcommittees. So to have
this kind of historic--I think the Chairman mentioned it is an
historic day. To have four members of Congress from four
different states, to have three chairmen on a subcommittee
hearing just shows how important it is. So I would like to
thank him, as well.
And Chairman Congressman Griffith from Virginia knows
mining well. We talked on the House floor just the other day
about some of the issues that he deals with in Virginia. So
having reasonable MSHA regulations are critical.
I would like to ask the Chairman to just highlight three
individual letter records and ask him for his consent to have
them for the record, if you don't mind, Mr. Chairman. One of
them is from the Commissioner of Labor, Cherie Berry, who is
very concerned that we have gone to an enforcement mechanism
from a training. She has her head of mining and safety, William
Garrenger, here today. I thank him for coming. So I would ask,
Mr. Chairman, if we could submit this record, this letter for
the record.
In addition to that, I have a letter from Congresswoman
Virginia Foxx, who knows this area well, is from Avery County
originally. She serves in Watauga in Congress, in Watauga and
going over. She is also on the subcommittee that actually has
the legislative jurisdiction, along with Congressman Roe, over
this particular area, and she has expressed her real concern
that we have gone from a safety training environment to an
enforcement environment and has sent a letter in support of
this hearing as well.
And then finally, we have a letter from the Chairman of the
Board of Directors of the National Stone, Sand and Gravel
Association, which highlights some of the issues that they are
dealing with as an association and some of these, and, Mr.
Chairman, I would ask that you would consider these for the
record.
Mr. Mica. Without objection, both the statements from the
North Carolina Secretary of Labor, Representative Foxx, and --
--
Mr. Meadows. Yes. Yes, sir.
Mr. Mica.--will all be included as part of the record.
Without objection, so ordered.
Mr. Meadows. And with that, Mr. Chairman, I yield back.
Mr. Mica. Well, thank you again. And, Mr. Meadows, let me
ask you, if you would, as a courtesy before I go to the other
members, I had an opportunity to meet the mayor and the
sheriff. Is the mayor here? Would you like to introduce your
mayor? And I thank him also. I love history, and to be in the
1907, I think it is, historic courthouse, it is quite a treat
to be here and to see the great work they have done in
restoring this historic building. But would you like to
introduce him?
Mr. Meadows. Thank you, Mr. Chairman.
A special thank-you to our mayor that has done such a great
job here. When we talk about North Carolina, we talk about real
hospitality. So our mayor has done that, and I just applaud
him.
And our sheriff, thank you for the security.
[Applause.]
Mr. Mica. Thank you again, Representative Meadows.
Now I yield to Dr. Roe. You are recognized. Welcome.
Mr. Roe. Thank you, Chairman, for the opportunity to speak,
and also I want to brag on Chairman Mica. He just three years
ago, I guess, came over to my district, and we all had some
transportation issues. At that time he chaired the
Transportation and Infrastructure, a huge committee on Capitol
Hill. Chairman, thank you for what you're doing. I really do
appreciate it.
Mr. Mica. Thank you. It is great to help. We worked on the
transportation bill, which was not easy. I described it one
time as trying to give--like trying to give birth to a
porcupine.
[Laughter.]
Mr. Mica. If you think it is easy, you should have been
with the four of us yesterday on the floor debating the farm
bill. That was not a successful delivery.
[Laughter.]
Mr. Mica. But I thank you again for all of your help and
coming to this hearing. And again, it is rare that you get
representatives, people with concurrent responsibilities in
their districts and interests that all mesh and bringing them
together for a field hearing like this. So, thank you.
Mr. Roe. Well, I want to thank the crowd for being here
today. This is what democracy is all about, to bring the
government to the people. And the panel, thank you. I wanted to
thank you because when we hold hearings in Washington, we have
people who are really professional testifiers, and all of their
testimony is very slick and so forth, and you all got straight
to the point, where a country boy like me can understand you. I
appreciate that very much.
And I also want to thank Mark and Morgan Griffith. We have
become fast and furious friends. You have elected a great
representative for North Carolina.
[Applause.]
Mr. Roe. I certainly know this issue very well in North
Carolina because all of my district parallels North Carolina,
from Mountain City all the way to Gatlinburg. So I am over here
all the time, and you probably won't recognize me. I'll either
have a golf club in my hand or I will have hiking boots on, so
I am over here to have fun when I come to North Carolina.
I want to introduce a very dear friend of mine that I have
known for 25 years, Bill Slate sitting right back there. Bill
called on me in my medical practice for 25 years, and I
appreciate your friendship. One of the things that made it a
lot easier for me to get elected to Congress with these three
gentlemen was that I delivered my own voters, so it helped a
lot.
[Laughter.]
Mr. Roe. It worked out pretty well.
[Laughter.]
Mr. Roe. The reason I enjoy these hearings and, Mr.
Chairman, the reason that I will jump at the chance to come, I
have held numerous hearings outside of Washington, and this is
where you really--and I can assure you, inside of 395,
something is wrong with the oxygen, I can tell you. It doesn't
work right. Out here, you can actually find out what is going
on with real people, real jobs, and about these mandates.
And, Mayor, I want to tell you and the sheriff, if I
possibly can--I was the mayor of Johnson City before I went to
the Congress. That was my political job. I never served in any
other political job. I would never vote for an unfunded mandate
in local government if I know what I am doing. Now, these
1,000-page bills, sometimes I might get through them. But I had
enough of them dropped on me to understand what you are dealing
with here on the local level.
So I want to thank you for the work the local people do.
The best government in the world is local government, and that
is one of the reasons that we are here today, is to bring the
Federal Government to the local level. And we are going to
learn a lot today, a lot more than I would learn in an hour or
so if I had stayed in Washington.
And the other reason I am here, Mark invited me, and
anything that I can do to support him; and secondly, the MSHA
comes under my committee of Education and the Workforce, which
is why I am here today.
And I yield back, Mr. Chairman.
Mr. Mica. Thank you again for being with us.
Now the gentleman from Virginia's 9th District, Congressman
Griffith, welcome, and you are recognized.
Mr. Griffith. Thank you, Chairman. I do appreciate you
doing this. These field hearings are so important, as
Congressman Roe said. He came to one that we had last year in
my district. This is a way--a lot of folks can't make it to
D.C. to get their opinions heard. This is a way that they not
only get their opinions heard by some congressmen, but also all
of this goes into the official record. So it is good to get it
on the record, how people are feeling, and I do appreciate you
taking the time to be here, Mr. Chairman.
You come from the farthest away of any of us. I will tell
you that, as Congressman Meadows said, he said you have to be
coming here to get here. I know that feeling, because if you
look at the map and you go as the crow flies from my house down
here, it is a pretty straight line.
[Laughter.]
Mr. Griffith. In fact, 221 goes through my district, which
is right close to here. But that is not the way you get here.
[Laughter.]
Mr. Griffith. I came through Phil's district.
[Laughter.]
Mr. Griffith. I circled down 81 and circled back through
Tennessee to get here because when you have a mountain
district, you understand these things. That is how you get
here. So it is like trying to get--about a third of my district
land mass, I go through Phil's district. I drop down and go
around a mountain because you can go through the mountains. It
just will take you an extra 45 minutes to an hour. So I am glad
to be with you all today.
I am so glad to be here. My district comprises a lot of
mining operations. Most of it is coal, but we also have a
significant amount of aggregates mined in my district of
southwest Virginia, and so it is very important. And when I saw
that there was this opportunity to come here and to learn a
little bit about what is going on with MSHA, because my folks
are always talking about MSHA, but I serve on the Energy and
Commerce Committee, so most of my time has been spent defending
the rights of citizens to have affordable energy--aka coal--and
use that. But I also hear complaints on a regular basis about
MSHA, so I am glad that I am here to share that.
I will say that Dr. Roe got to Congress a lot easier than I
did, because when you deliver your clients, or your voters--
your clients are your voters, and you deliver them, that is a
good thing. I am a criminal defense attorney.
[Laughter.]
Mr. Griffith. So about half of my clients couldn't vote for
me.
[Laughter.]
Mr. Griffith. But I am glad to be with you. As Chairman
Mica said, I serve on the Oversight Subcommittee of Energy and
Commerce, and sometimes it gets confusing because your
committee, as you know, Representative Meadows and Chairman
Mica, you all have a big oversight committee. Then each one of
the other standing committees in Congress has an oversight
committee that oversees particular matters under their
jurisdiction. So I am glad to be sitting with the folks who sit
on the big oversight committee. They have been getting all the
action lately. I am a little jealous.
[Laughter.]
Mr. Griffith. But I do look forward to today's hearing and
finding out--I know that we are not dealing with MSHA from the
coal side but from the other side of the split in MSHA safety,
but a lot of the issues are overlapping. I am just glad to be
invited to be with you, and thank you for doing the good work
that you all are doing.
Mr. Mica. Well, thank you.
And let me say at this point, since we have heard from the
members with their opening statements, that all members may
have seven days to submit opening statements for the record.
Without objection, so ordered.
And we will now turn to our patiently-waiting first panel
of witnesses, and I will introduce them.
Again, Mr. Jeff Stoll is the Safety and Health Manager at
the Quartz Corporation; Mr. Mack McNeely is Vice President of
LBM Industries; and Mr. Sam Bratton is the President of the
North Carolina Aggregates Association.
Gentlemen, let me just tell you a couple of the ground
rules. First up, this is an investigative panel. In a minute,
you will be sworn in. You will be given--and we will be pretty
liberal with the clock today. But if you get too lengthy we
will cut your oratory, and you can ask through the Chair to
submit additional information about anything you would like to
be part of the record. So you have that ability to do that,
having gone one at a time to address the panel today.
So with those basic ground rules, if you will stand,
please, and raise your right hand.
[Witnesses sworn.]
Mr. Mica. Let the record reflect that the three witnesses
all answered in the affirmative.
I think we are going to start today with Mr. Bratton, since
you represent the North Carolina Aggregates Association. Mr.
Sam Bratton, we will start with you. So, welcome, sir. Thank
you for being with us, and you are recognized to present your
testimony.
WITNESS STATEMENTS
STATEMENT OF SAM BRATTON
Mr. Bratton. Thank you. Good morning, Mr. Chairman and
members of the committee. My name is Sam Bratton. I am
President of the Wake Stone Corporation and the North Carolina
Aggregates Association. Wake Stone Corporation is a 43-year-old
family business, a crushed stone operation with 122 employees.
As President of the North Carolina Aggregates Association, I
represent an industry with over 135 crushed stone quarries and
500 sand and gravel pits.
I am here today to give voluntary testimony on behalf of
the aggregates industry of North Carolina regarding the role
the Mine Safety and Health Administration plays in regulating
metal and nonmetal mining in North Carolina. I have provided in
my written testimony several copies of correspondence to and
from MSHA, plus several examples of MSHA inspector overreach
provided by associate members.
However, I do want to say for the record, some companies
were not comfortable identifying themselves in their
submissions due to fear of retribution.
The North Carolina Aggregates Association wants to assure
Congress and MSHA that our members are not against safety
regulations. Safety is our number-one priority. But our
industry's relationship with MSHA is strained. My last
encounter with Mr. Lichtenfels best illustrates MSHA's
perception of the mining industry.
On November 30th, 2010, in a meeting between the North
Carolina and South Carolina Aggregates Associations and MSHA,
many members complained about MSHA requiring the chocking of
loaded heavy equipment on a grade. These pieces of equipment
are just too large, in all practicality, to chock on a grade
fully loaded, but MSHA inspectors have been instructing
equipment operators to chock-load their trucks on a grade in
the quarry pit and then place the transmission in neutral and
release the parking brake. The chocks consistently failed when
tested in this manner.
When it was explained to Mr. Lichtenfels that this practice
was not only impractical but also dangerous, he looked directly
at me and, I quote, ``You are still killing people, and so we
are going to continue to do what we need to do.'' I admit that
there was a time in the aggregate mining industry when safety
was not our top priority. But in today's business environment,
producers are much more sophisticated and focused on safety.
Proof of this commitment is a 2011 metal and nonmetal
injury rate of 2.6 per 100 workers, which was lower than coal,
construction, manufacturing, education, health, forestry,
logging, state and local government, and many others, as well
as MSHA itself, which has an injury rate of 5.7 per 100
workers, more than double the metal/nonmetal mining industry. I
want to repeat, MSHA's injury rate is more than double the
metal/nonmetal mining injury rate.
I would like to share with you an example of overreach. In
Wake Stone Corporation's Ashe County quarry, an inspector
witnessed a customer truck driver climb on the side of his
parked truck to check the truck bed. The driver was very
careful and deliberate in performing this action, using three
points of contact at all times. The inspector issued Wake Stone
an imminent danger order and substantial and significant
citation, with a high likelihood of permanent disability.
When asked what should be done to prevent this circumstance
from occurring again, the inspector told us that all customer
activity outside of a truck must be done off quarry property.
We explained that it is much more dangerous for a driver to
perform this action on the shoulder of a public roadway versus
in a quarry, where an area is provided for trucks to pull over.
The inspector stated he did not care what happened to the
driver outside the quarry entrance. But we presented a MSHA
video in our defense which we possessed at the time of the
citation. It was entitled ``Customer Delivery Truck Drivers
Hazard Training.'' This is a slide from the video.
The video clearly shows the exact same activity performed
in a quarry in the same manner in order to demonstrate the
proper way to climb a truck to get to a load. After viewing the
video, MSHA refused to vacate the citation and imminent danger
order. So we contested it. Unfortunately, we decided to settle
for pennies after two years and three months and countless
hours and dollars of resources. The decision to settle was
based upon our concern that legal precedent could be set if the
case went before the biased MSHA commission.
It is our belief that training is much more effective than
enforcement. But MSHA continues to place much more emphasis on
enforcement. However, Joe Main, Assistant Secretary of Labor
for MSHA said himself that training is a top priority for MSHA.
But MSHA recently requested in their 2013 budget a $5 million
reduction in funding for the state grants program, requesting
the funds be shifted to enforcement; so, from training to
enforcement. The reduction in $5 million to be shared among 49
states does not appear significant. It is only $5 million
shared, but it would devastate the North Carolina Department of
Labor's Mine and Quarry Bureau Miner Safety Training Program.
Our goal is a better relationship with MSHA. We desire
consistency, transparency, cooperation, accountability, fair
and due process of contested citations, differentiation of
surface aggregate production from underground mining and all
coal mining, and performance-based enforcement and more
training dollars. We believe these goals can be achieved by the
following recommendations.
First, establish a three-member committee to review
contested citations with representatives from MSHA, mining, and
an MSHA-trained attorney.
Two, develop a method of communicating all vacated
citations to MSHA inspectors and mine operators. This is not
done today.
Conduct a process audit of MSHA procedures.
Focus more resources on training.
Establish a performance-based inspection process so those
operations that need more enforcement get more enforcement, and
those that don't do not.
And more differentiation between coal mining and surface
aggregate operations.
I want to state, our industry needs MSHA. We need safety
regulation. But we do not need it in the form it is
administered today.
I now ask all the people present that support this
testimony through the North Carolina Aggregates Association to
please stand.
Mr. Chairman, committee members, we respectfully request
the Committee on Oversight and Government Reform take action on
these recommendations. Thank you.
[Prepared statement of Mr. Bratton follows:]
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Mr. Mica. Thank you for your testimony.
Let the record reflect that your members also stood, a
large number of them, and we appreciate also that they are with
us today.
Mr. Bratton. Yes, sir.
Mr. Mica. We are going to hold questions until we have
heard from all of the panelists.
Mr. Mack McNeely is next. He is the Vice President of LBM
Industries.
Welcome, sir. You are recognized.
STATEMENT OF MACK MCNEELY
Mr. McNeely. Mr. Chairman and members of the committee,
thank you for holding this hearing and for this opportunity to
testify. I appreciate your interest in our concerns with MSHA.
I am Mack McNeely, Vice President of LBM Industries in
Sapphire, North Carolina. We have three operations that are
under MSHA jurisdiction. Our primary contribution to the local
community is our mining operations. We treat safety at our
mines as a priority. We are a very small operation. We work
hand-in-hand with our employees, and the last thing we would
ever want is for somebody to be hurt. We have a very good
safety record.
I would also like to say that MSHA has an important role in
mine safety. We support that role. Safety is paramount to us,
and we do not mind following the rules. The biggest issue we
have with MSHA is how unpredictable and inconsistent they are
with their interpretations and enforcement. Let me give you a
few examples.
In 1998, we installed a new conveyor with guarding at one
of our quarries. Before putting the conveyor in service, we had
a courtesy inspection by MSHA to make sure it was in
compliance. After more than 20 inspections, an inspector in
2010 cited us for inadequate guards on the conveyor, so we had
to stop production for 24 hours while rebuilding the guards. We
were given a field citation, but we couldn't resume production
until we had new guards installed to satisfy the inspector.
When ordering new conveyors from a manufacturer in
Pennsylvania, they asked us to provide drawings showing where
to locate the safety rails along the conveyor walkways. The
conveyor company told us that every MSHA district interprets
the safety standard differently, that there was no way they
could install a rail to satisfy the inspectors by all the
districts.
We received a citation for a seat belt on the Bobcat
series. Could you show the slide, please? The edge of the loose
end of the belt was a bit frayed. Even though the fray had no
effect on safety, we received a citation for S&S, high
negligence, and likely to cause a fatality, with an $1,100
penalty. We negotiated it down, but it should not have been
cited at all. It had nothing to do with safety.
And my last example is one that is still on the grill. In
February 2010, the inspector gave us fair notice that an
excavator didn't have hand rails for fall protection. The
manufacturers build equipment according to international safety
standards, but the standards accepted by the rest of the modern
world were no longer good enough for MSHA. We contacted
Caterpillar, but they do not supply such rails because their
equipment, of course, was designed to meet international safety
standards, and, ``MSHA has not provided clearly-defined
standards regarding adequate fall protection or safe access.''
We found an after-market supplier for guard rail kits and
ordered one. We had a dozen machines that would need these
kits, and it was going to cost us over $50,000. In June before
the guard rail kit had even arrived, MSHA issued a bulletin
that said if the equipment meets industry standards, that would
be deemed sufficient.
In November, I attended a meeting where the assistant
secretary, Jim Main, was the keynote speaker. He also affirmed
that if our equipment met industry standards, we were okay, so
we thought that was pretty solvent when he said that our folks
could use the access pass that the manufacturers had installed.
During a 2011 inspection, the inspector asked to look at a
part of the excavator. Our superintendent climbed up the steps,
stepped onto the deck and grabbed the hand holds, which is the
way the manufacturer had designed access to the engine
compartment. The inspector issued a citation and imminent
danger order for not using fall protection. We explained MSHA's
policy to the inspector and that we heard it straight from Jim
Main. We got a special assessment penalty of $6,300.
At the closeout meeting, the inspector said something quite
different. He told us, and I quote, ``This is not about safety.
It's about compliance.'' Well, I ask you, compliance with what?
What more could we have done than comply? We know that similar
citations have been vacated, but not ours. We have other
inspectors tell us that the citation should not have been
issued, and I would like to say that our last inspection, which
was this week, the inspector said going--alright with the same
citation.
I would imagine, as you evaluate my testimony today, it
would be easy to believe that these issues are unusual, but
they are not. Usually the people who testify before this
committee are the ones with the biggest, strongest story to
tell, but the strength of my testimony today has to be its
commonness. Similar testimony could be repeated by practically
every miner in the state.
MSHA's focus needs to change from compliance back to
safety. We need clarity and consistency with safety rules and a
timely appeals process. We need your help and need MSHA to do a
better job. It would be wonderful to be able to view MSHA as a
partner in safety instead of an adversary.
Thank you again for your interest in our concerns and this
opportunity to testify.
[Prepared statement of Mr. McNeely follows:]
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Mr. Mica. Thank you for your testimony, Mr. McNeely.
We will now turn to our final witness on this panel, Mr.
Jeff Stoll, and he is the Safety and Health Manager at Quartz
Corporation.
Welcome, and you are recognized.
STATEMENT OF JEFF STOLL
Mr. Stoll. Chairman Mica and members of the committee,
subcommittee, first let me thank the Government Operations
Subcommittee and all others in this room for allowing me the
privilege to speak. I believe that the very existence of this
meeting underscores what this great country stands for,
freedom, and the right to express peaceful opinion or
dissention to governmental authorities.
Today, I come before you to testify regarding the Mine
Safety and Health Administration reform debate. Most of the
mining community would agree that since the inception of the
Mine Act, MSHA has certainly had an overall positive impact on
miner safety. But, they have since become out of balance under
their current leadership by emphasizing a punitive approach
instead of training and education. We in western North Carolina
believe that these policies have created undue economic
hardship on responsible operators and do very little to improve
miner safety.
This is our petition to the committee and MSHA.
Update the 1977 Mine Act to reflect the safety
modernizations and technological advancements made in the past
36 years. Quite frankly, the Mine Act is very archaic as it is
currently written.
Number two, MSHA's discrimination and enforcement push
needs to be reviewed from the standpoint of hindering
legitimate company applications of disciplinary actions on
employees. As these gentlemen indicated, accountability is a
critical component of having a sound safety program.
Number three, the arbitrary and capricious citational
inspection system lacks due process application and contains a
triple penalty economic burden. We have the terminate citations
at the behest of the inspectors, the fines that are
consequently negotiated and are paid by the operators, and then
we have legal fees on top of that if we disagree with how these
citations have been written. So I call that kind of a triple
penalty burden on the operators.
Number four, reconfigure the 800-number hazard complaint
call-in system to ensure frivolous calls are not being made,
creating confusion, mistrust, and resource drains for MSHA and
industry.
Number five, fines and penalties, or at least a percentage
thereof, should be placed in a safety escrow account,
essentially a beneficial safety project grant program managed
by MSHA's Small Mines Office.
Number six, MSHA's push to cut state grant program monies
and funding for training and education is a step in the wrong
direction for safety. More state resources should be utilized,
minimizing the growth of MSHA's bureaucracy.
Number seven, MSHA should exercise impartiality on fatal
investigation root-cause evaluations, eliminating automatic
blame on mine management.
Number eight, MSHA's secretive approach on inspector notes,
and the extent and hurdles for industry to obtain them--i.e.,
Freedom of Information Act--is not furthering safety
improvement by preventing trust and transparency development
between the regulator and the mining community. Those notes
should be made available immediately. It's about safety.
Number nine, if MSHA's ARs are going to make critical and
many times very costly engineering calls on mine operators,
then they need to obtain the proper credentials and credibility
to do so.
As a matter of appearance and credibility, MSHA should
investigate why their own internal injury rates are so high
since, as we understand it, the universal or bottom-line goal
of any safety regulator or company safety program, what we all
work for, is injury reduction or prevention.
Number eleven, reduce the overall out-of-balance approach
by MSHA as it relates to their budget, amount of resources
spent, where these resources are spent, policy reviews and
transparency to the U.S. citizenry and the regulated mining
community.
In summary, in a recent mining safety conference I
attended, the central theme was that an effective safety
program must not always use techno-speak and tough policy talk,
but more of a personal connection and caring approach to each
and every person. That is the best way to be a parent, as I
have learned, a spouse, a friend, and, yes, a regulator. In
this way also, MSHA should look more at this approach in how to
be a more effective accountability organization for the mining
community.
After all, mining is critical to our economy here in
western North Carolina, as we all know. In fact, if it isn't
grown, it has to be mined. A smart MSHA is therefore required
in this, the 21st century. Thank you.
[Prepared statement of Mr. Stoll follows:]
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Mr. Mica. Thank you. I thank all three of our witnesses for
their testimony this morning, and we will start with a round of
questions, and I will begin.
First of all, to Mr. Bratton and Mr. McNeely, I saw some of
the MSHA-produced training materials, the video. It appears
from what you have said that some of the practices in their
videos actually don't comply with some of their safety
mandates. Is that correct?
Mr. Bratton. Well, actually, the safety video was
dismissed. They were dismissive of it, saying they weren't
aware of the existence of the video, and as far as the
specifics about climbing on the side of the truck, there are
not specifics about that in the standard. It is about safe
access and things like that. So it is broad enough where they
can take and interpret what they want, and so that is what they
did with the imminent danger order.
The inspector was--he was on a scrim tower 600 feet away,
and we had to go down there and clear the area. The truck
driver, when he was approached said, ``You know, sir, this is a
violation.'' He said, ``Well, I used three points of contact.
You know, that is what I am told to do.''
And anyway, the training video--I mean, MSHA is purposeful
in allowing themselves a subjective interpretation at the time
of the citation, and they also fall back on sets of
circumstances being different. When you are able to get a
citation vacated, they will not specifically say anything that
would be precedent-setting because they want to continue to
issue those citations. They just may understand that at this
point you have put together a good enough defense, so they have
got to vacate.
So I don't know--there is not anything specific in their
regulations that says that there is a safe way to access it.
They just say you are supposed to use safe access, and that
driver did, in accordance with a training video that they had,
and they just wanted to dismiss it. It wasn't convenient for
their argument. That is how they work.
Mr. Mica. Let me say, too, and I was going to say this at
the outset, first I thank you for coming to testify. When we
had set this hearing up and we had you all selected as
witnesses, I really appreciated you coming forward. Sometimes
these agencies will intimidate some of our witnesses. In fact,
I have found it difficult sometimes to get folks to come and
testify because they fear, as someone said, retribution.
I will tell all three of you, if there is any instance of
what you feel is retribution or anyone giving you any
difficulty as a result of your testifying today, I want you to
notify the subcommittee or myself immediately.
Mr. Bratton. Thank you.
Mr. Mica. I will guarantee you I will handle those people
and they will not forget the truth that I rub off, and if they
want to talk about retribution, I know how to provide it.
[Laughter.]
Mr. Mica. But I thank you for coming.
This is very serious. There are so many instances in which
these agencies have become so powerful that they do intimidate
folks, and so I thank you. And you can tell them, too, if you
hadn't appeared, I probably would have subpoenaed you, but I
have you all here anyway.
[Laughter.]
Mr. Mica. But that being said, it sounds like the
penalties, they have gone overboard with the penalties. How is
the industry affected by these--was it 500 percent increases,
Mr. Bratton, Mr. McNeely, Mr. Stoll? Are they imposing a
financial hardship?
Mr. Stoll. I would say, if I may, we have had at one of our
locations 2.2 million man-hours without an accident. The other
location is approaching half a million. We have had three or
four years in a row of record-setting injury rates. Our injury
rate is about half or a third of that number. Mr. McNeely
mentioned MSHA's injury rate woes internally.
Mr. Mica. That is their inspectors and their folks?
Mr. Stoll. That is everybody that they employ, apparently.
Ours is like one-third of theirs. However, in 2012, we were
fined $143,000--$143,000. Now, that doesn't add up. That just
does not add up.
Mr. Mica. Is that multiple infractions that they charged
you with?
Mr. Stoll. Multiple infractions, correct.
Mr. Mica. And how about the others? Mr. McNeely, what is
your experience?
Mr. McNeely. Well, I would like to say that the fines have
increased a good bit, but for our part, our biggest problem is
the way that things get enforced in a manner--I mean, just like
I mentioned this guarding issue. The fine might have been $200,
and it might be very easy to beat that citation if you appeal
it and go through the process for a couple of years, but the
fact is we can't resume production until those guards meet that
particular inspector's standards.
Mr. Mica. The instance you cited, was that one instance in
which they closed you down, or have there been others?
Mr. McNeely. It is more like with the excavator issues. I
have letters from Caterpillar going back to 2007 where they say
MSHA will not give them good enough data to design a system for
their excavators. They say it just goes back and forth between
you have to have handrails, you don't have to have handrails,
every few months. It has been that way for years. And one day,
all of a sudden, we get a $6,300 fine. A few months before
that, we are told we need to order handrails, and we are
looking at buying $50,000 worth of handrails.
Mr. Mica. You said there have been some 20 inspections
before on that--what was that about?
Mr. McNeely. That was the guarding issue.
Mr. Mica. Okay. There is an inconsistency, a fair
inconsistency in their standards and their--the
unpredictability of enforcement.
Mr. McNeely. Right, and we were told we need to buy
handrails, and we ordered some, and before they get here, we
get a bulletin that says we don't need them. And then a few
months after that, we hear the assistant secretary speak
himself, and he says they are not required, and then the very
next inspector that comes through the door writes us a $6,300
citation.
Mr. Mica. Mr. Bratton, what is your experience?
Mr. Bratton. The same as Mr. McNeely's. There is something
that they have called pattern of violation where they want to
try to issue as many citations in order to then be able to
continue to escalate the fines as part of a pattern of
violation. Also, within the Rules to Live By they have, which I
can't cite by memory, but they have these rules that are
escalating, increased severity, increased size.
But one of the real costs that we have at MSHA is the cost
of due process and the fact that in defending ourselves, the
resources we have to--because we are basically guilty until
proven innocent in the system and we have to hire attorneys,
folks in-house have to spend a lot of time and effort on this,
and they are citations that should never have been written. It
was two years and three months on the fellow climbing on the
side of the truck, preposterous, and it got to the end and,
because you will conference a citation--they used to have more
of an independent review. We just got a bulletin this week that
now, if we contest a citation and we ask that it be
conferenced, we have to go to the field office supervisor, who
is the supervisor of the investigator who is training the
investigator to issue the citations, and we have to go to him
for some potential impartial conferencing, which does not
exist. That system has now just been set up in the last week.
June 17th that notice was issued.
After that, then you appeal. You have an administrative law
judge. If the administrative law judge rules in our favor, and
MSHA doesn't believe that that is precedent-setting, it may
lead to you going in and settling. If you want to take it to
the commission above this, MSHA's commission, then it is a very
biased group that rarely ever rules in opposition to MSHA.
So this is just not--the whole system needs to be changed,
and there needs to be an audit. I would love to see the
Government Accountability Office go into MSHA and take a look
at their processes.
Mr. Mica. That is something we can request. I will confer
with Mr. Meadows on that. In the meantime, too, the law--Mr.
Stoll cited the law being some 36 years old. Has a state
association or national, have you all developed an outline or
suggestions for revisions in the law? Does anyone know? Mr.
Stoll, you cited the aging of the 1977 Mine Act, that it
doesn't meet today's technological advancements and
modernization. Are there specific recommendations for updating
that section?
Mr. Stoll. I think corporately, through the associations,
we have the National Mining Association, the North Carolina
Aggregates Association, they have submitted some of these ideas
----
Mr. Mica. Maybe you or, I don't know, Mr. Bratton, you are
with the Aggregates Association, do you have specific
recommendations?
Mr. Bratton. Yes, sir.
Mr. Mica. Changes in the law that you could submit them to
the subcommittee, we would appreciate that.
Mr. Stoll. If I may, Mr. Chairman, give you one example
that I brought with me is safety belts and lines. That is in
the Mine Act. In fact, let me just read it to you. It says,
``Safety belts and lines shall be worn by persons in order to
avoid the danger of falling.'' Then it goes on and talks about
working around stacks--taking them serious. Well, no company
utilizes safety belts anymore. They have been deemed, by
testing and everything else, to be very hazardous to the miner.
That is just one good example. We use four-point harnesses now
when we apply fall protection.
Mr. Mica. Again, maybe as a result of this hearing, we
could get the various state and national associations, if they
come together, they probably have some of this drafted already,
their suggestions, and then we will see if we can't check with
them. Last year, I don't know how we did it, but we did the gas
pipeline safety. It was similarly outdated. We got the darn
thing passed. I am still stunned. Mr. Waxman signed on as a co-
sponsor. Miracles do happen, even in Congress.
But again, with outdated laws and an agency that has sort
of spun out of control here, it seems like basic guidelines and
statute cries out for some reform. So we will work with you,
and I am going to work with your representative to see what we
can do in that regard.
Mr. Bratton. I would like to submit my oral testimony for
the record.
Mr. Mica. Without objection.
Mr. Bratton. In there I have six recommendations with some
specifics.
Mr. Mica. Excellent.
Mr. Bratton. But I would be pleased to participate in the
process.
Mr. Mica. Excellent. I am always quoted as saying, one of
my favorite sayings to folks is don't assume members of
Congress know anything, start from that proposition.
[Laughter.]
Mr. Mica. And I can tell you, I am learning a lot today.
That is how things get changed, through these kinds of hearings
and exchanges. Of course, you can't just talk about it. You do
have to act on it.
So with those comments, let me yield to Vice Chairman
Meadows. You are recognized.
Mr. Meadows. Thank you, Mr. Chairman.
And I thank each of you for your testimony. Obviously, some
of these stories, Congressman Roe, as we start looking at these
pictures, it is very illuminating when we see really the things
that you have been cited for. My concern is when you start
getting cited for, Mr. McNeely, in your case, a frayed hem on a
seat belt that was not part of the restraining harness, it
becomes very difficult to figure out what you need to spend
your money on and how best to protect your workers when you are
looking at an enforcement mechanism. Each time your inspector
comes, you are trying to guess at what they want you to pay
attention to?
Mr. McNeely. Well, it does, and that is probably one of the
main things that we would like to say, is we need some
consistency. And on issues like the seat belt or like the
excavator access, it just truly don't make sense. And, I mean,
mining companies have been using excavators since before MSHA
was inspecting mining companies, and we still don't know how to
check the oil safely. That's one of those things.
Mr. Meadows. Right. So, you are here today. You are three
people of an industry. I mentioned in my opening testimony, I
think there are 800 permitted sites across North Carolina, so
you are just three of 800, and you probably represent more than
just three of those sites. But as you look at that, one of the
arguments is going to be that you guys are unique, that it is
only the three of you, that you are the few that are having to
deal with this.
Would you say that other miners are experiencing similar or
worse problems than what you have highlighted today?
Mr. McNeely. I would say that the things that I highlighted
today are very common, and we probably have had fewer problems
than a lot of other companies, even other companies that do a
good job with safety.
Mr. Meadows. Okay. Mr. Bratton?
Mr. Bratton. Yes. Well, that is why I asked people in the
audience to stand at the end of my testimony in support of it.
Mr. Meadows. So what you are saying is that those people
who stood, they have experienced similar situations like that?
Mr. Bratton. Yes. If you would like to stand again?
Mr. Meadows. If you have experienced similar situations on
the ambiguity, would you stand?
Mr. Bratton. Thank you. I hope that helps.
Mr. Meadows. It does. Thank you.
So, Mr. Stoll, you mentioned about a fine of $140,000-some-
odd. You are a larger corporation, so you can afford that,
right? Oh, you can't.
[Laughter.]
Mr. Meadows. So when we have fines like that--and let me
shift our focus a little bit. When we are going with
enforcement and we are seeing that it is unfair--and this kind
of piggybacks on what I asked Mr. McNeely--when we feel like
enforcement is unfair, owners of mines are in a unique
situation in that they can't pick up their mine and move to
another state. And so you are kind of trapped there and have to
deal with it.
But those that have options of mining abroad, do you see us
losing more and more jobs to quarries, if there are the natural
resources in those foreign countries? Do you see this as being
so punitive that other mines that compete with us, we might
lose jobs? It is tough when you are dealing with something that
you measure in tons, that it is hard to import that. But do you
see us losing some of the, let's say, high-quality quartz? Mr.
Stoll?
Mr. Stoll. The simple answer is yes. The reason is when you
look at our fines that we had from MSHA in 2012, you are
looking at $143,000. That is hiring two months. We have 12, 13
percent unemployment here in Mitchell County, so that is the
difference.
Now, the arbitrary and capricious part, I know that is kind
of a harsh term, but when you look at the imbalance of
applications like inspectors that these two gentlemen
mentioned, and then in our particular case a lot of that
$143,000 generation came from an inspection of some of our fall
protection systems that were deemed by other inspectors to be
okay. So what you breed is you breed complacency. The operators
in that were confused in what we have that is okay with the
regulations and with MSHA, and what we don't have that is okay.
So, you know, I train our guys about complacency,
especially some of our older miners, not to get complacent, to
be as safe as they can. If they don't know how to do something,
always keep your guard up for safety. How would MSHA expect the
operators, then, to regulate if three inspectors come down and
say that system is okay, and the next one comes in and fines us
$100,000? So that imbalance can affect jobs and ----
Mr. Meadows. So it is not knowing at what point you are
going to get fined for what. And I think, as Mr. McNeely said,
you had 20 different inspections, and the Chairman kind of
pointed that out, 20 different inspections, and then all of a
sudden you were asked to stop work and install the guardrails.
So let me go to that point.
When you have these major operations, and when you get a
citation and you have to stop work, that means sending people
home? That means shutting it down? Or does it mean you just
basically pay them while you can't operate? Is that what you
have to do occasionally? Mr. Bratton, you can see probably
across the board. I mean, is a work stoppage what happens
sometimes when these things are issued?
Mr. Bratton. Yes, and that means it can be stopping the use
of that piece of equipment, which with a conveyor means you
can't operate the plant.
Mr. Meadows. Right.
Mr. Bratton. There are other activities that still could be
done, but it is an expensive interruption.
Mr. Meadows. Is there a matrix? My time is running out, so
I will finish with just a couple of very short questions here.
Is there a matrix that says, okay, if you violate this, this is
a major offense and you are subject to a $50,000 fine if you do
this, or you are subject to work stoppage? Do you have--I mean,
to give a practical example, when I am on the highway--and I
never speed, sheriff.
[Laughter.]
Mr. Meadows. But when I am on the highway and I am going
past the speed limit sign, I know that the minute I go beyond
55 miles an hour, that I have the risk of getting a fine. Do
you have the proper speed limits from the regulations that are
in place? Do you understand all the speed limit signs that are
out there, or are there some of them that are hidden behind
bushes and things like that?
Mr. McNeely. The short answer is no, we don't. It is more
like instead of having a speed limit, the signs say ``Travel at
safe speed.'' So if you come through Bakersville, a safe speed
can be one thing, and as you go through Spruce Pine, a safe
speed could be another. And it could also be ----
Mr. Meadows. So it is up to the police officer to decide
that?
Mr. McNeely. Exactly, and in some of these cases, it is
things as big as say you were sitting in a turn lane to turn
left and you get stopped and the patrolman says, ``Your turn
signal blinks too slow.'' And you say, ``Well, my car is a
brand-new Toyota that is designed to all the safety
standards.'' And he says, ``Well, I think it blinks too slow,
it is a hazard, so you get it fixed.'' And then before you get
it fixed, you get a bulletin that says your turn signal is
fine.
[Laughter.]
[Applause.]
Mr. Meadows. I will close with this because, Mr. Stoll, you
mentioned complacency. I have visited some of these places. I
personally have visited, and I am not going to mention any
names in terms of what mines I have been in, but I haven't
found complacency. In fact, I found just the opposite. As a guy
who doesn't know what he is doing, I had to sign unbelievable
waivers.
[Laughter.]
Mr. Meadows. Unbelievable. I had to go through a safety
class to be there. And then I got--in one particular area they
got all concerned because I left my Coke can sitting on the
thing, and the wastebasket lid was half open. And they said,
``No, you have to close the wastebasket lid. We need to make
sure we get rid of this Coke because we can get fined in case
it attracts bees and it could potentially sting somebody.'' Is
that an exaggeration, or have you heard something like that
before? I mean, I was shocked to hear that.
Mr. Bratton. That is not an exaggeration. That is what is
happening.
Mr. Meadows. All right. With that, Mr. Chairman, I yield
back.
Mr. Mica. I recognize now Dr. Roe.
Mr. Roe. I thank the Chairman.
Mr. McNeely, just to let you know, that safety belt looked
a lot better than the one I put on in the airplane I flew in.
[Laughter.]
Mr. Roe. I think there is a larger theme here today. It is
one of overreach of government, and let me sort of share with
you some things that may not have to do with mines. Well, one
is a sulfur mine in my district, and they were issued an MSHA
violation for a two-pronged toaster instead of a three-pronged
toaster in the office. And, you know, I have only been in
Congress four-and-a-half years, but I thought the canary died
when you had an MSHA violation, something very significant, not
potentially bees might get in a Coke can or a two-pronged
toaster when you are trying to toast a sandwich.
I think that inconsistency that varies from inspector to
inspector makes it impossible to pinpoint. It is a moving
target, and it may vary from one district to another, and I
almost laughingly said welcome to Medicare. I have been dealing
with this for 35 or 40 years with Medicare rules and
regulations. You can't offer your business and run your
business. We treat safety at our mines very, very important,
and the whitewater quarries have one lost-time accident the
past 13 years. That is amazing. And the other quarry hasn't
lost time from an accident in 27 years. And one of the lost
times recently was someone who had a heart attack at the site.
I can recall when OSHA, at one of our hospitals, where the
handicapped rail in the handicapped bathroom--the OSHA folks
came by and said it should be here. People say it should be
here, and that would be funny except somebody had to come in
and change all of that and spend half a day doing that. And I
told the hospital administrator, I said, ``Look, this is
simple. Just put you some brackets up and when OSHA comes, put
the rail here. Stick the rail up here, and that will solve your
problem.''
[Laughter.]
Mr. Roe. But it doesn't have anything to do with the
primary goal, which is to make our miners safer.
And I think that, Mr. Stoll, you brought out at the very
beginning the purpose of these acts is to make it a safe
working place for miners to do their job. And it looks to me
like certainly, Mr. McNeely, the operation you have focuses on
that. I can't imagine a workplace being more safe than that,
and to be dinged for something as ridiculous as a frayed end of
a belt that doesn't even have anything to do with staying in
there, that would be like the end of my belt here is dinged and
it won't keep my pants up. I mean, that is how silly it is.
So, Mr. Stoll, here is something I want to comment on. Mr.
Bratton, you brought this up at the very beginning. One
operator is going to be cited for a violation for operating in
the same fashion suggested by the MSHA training video. The MSHA
inspector told the operator that the training video was
incorrect, that it was up to the inspector to determine the
proper procedure. How do you all know what that is? You don't,
so you can't comply.
Mr. Bratton. The operator--it is like being in the
darkness. You can't tell what is going to be a fine, what is
going to be a citation, what is not.
Mr. Roe. I am going to ask this panel a very tough question
now, and it may not be a fair question, but any of you can jump
on it. Do you feel that these inspectors are required,
pressured to write citations on every inspection? If they go
back and don't find anything wrong with your operation, do you
feel like they are pressured to find something?
Mr. Bratton. Yes, and we have had instances with members.
There is a member who has an operation in the western part of
the state, and they had zero citations. Well, then a couple of
days later, three MSHA inspectors showed up with the field
office supervisor and said you have zero citations. There is no
doubt, there is no way you can have zero citations. I am
standing here until you get a citation. So he gave them about
three citations. Then the next week they came back for another
inspection.
Mr. Mica. Excuse me. Could you ask the witness when this
occurred?
Mr. Roe. You can respond to the Chairman's question.
Mr. Bratton. When?
Mr. Mica. When this occurred.
Mr. Bratton. Well, I have somebody in the audience who can
tell you exactly when it was.
Mr. Mica. Was it in the last year? Five years?
Mr. Bratton. David?
Voice. In 2010.
Mr. Mica. In 2010, in the last three years. Thank you.
Mr. Roe. Thank you, Mr. Chairman.
And I will finish with two things to show you how hard it
is for a business to prosper. In my medical practice at the end
of every month, we would clean out the drawers and the closets
for any medicine that may be going out of date and we send it
to the homes so that people that don't have access to care can
get some medicine. We put it in a bag. Well, there are two bags
in the medical office. One is a red bag; that is the biohazard
bag. One is just a clear trash bag. The nurse stuck it in the
red bag. The OSHA inspector came in and said what's in that
bag? That was an $1,800 fine for putting it in the wrong bag.
The second is a needle that we use to draw fluid around a
pregnant woman to check for their maturity, fetal maturity.
This is a point where there is no safety. There isn't one in
the universe you can find. We didn't have a letter in our
office to say there wasn't one in the universe. That was a
$1,700 fine.
We did exactly what you guys did. We wrote the check for
$3,500 to get these people out of our office so they wouldn't
be back every day. When you make a moving target--I mean,
literally you cannot meet the standard, so it is almost
extortion. It is so frustrating because if you would just tell
me what to do or say, ``you should have done this,'' we
wouldn't do that. We would absolutely follow those rules.
And the last thing I've got--my time is up. I wanted to ask
you a question, maybe later. All of this money that is
collected in fines, $120-something-million in 2005, in 1995 it
was $20 million--I am rounding off these numbers--how much of
that money is reinvested back into education about how to make
the workplace safer? Mr. Stoll?
Mr. Stoll. Well, I think there are opportunities with that
money.
Mr. Roe. Do you know how much of it is? I think I heard $5
million? Is that how much was invested?
Mr. Stoll. How much is invested back?
Mr. Roe. Yes, sir, into education. In other words, instead
of not punishment but educating you all how to run a safer
mine.
Mr. Stoll. I think MSHA's intentions are reflected in their
budget by increasing the enforcement and decreasing the
training and education. That is what their true intentions
actually are released in MSHA's budgets.
I would like to mention something about the training and
education part, and I would like to submit this for the record.
On MSHA's very own website, it actually says--it is an
historical account. It says in the response--this is talking
about the number of mining fatalities since 1910. We had then
the Bureau of Mines, established in 1910. ``Promoting safety in
mining through research and training.'' So does it make any
sense, with the reduction in mining fatalities to the very
record low levels today, that there is a motivation to increase
the enforcement budget and decrease the training budget?
The state grant program is slated to be de-funded here in
North Carolina. That, to me, a lot of small operators--and we
have other mechanisms to do our training. But for a lot of
small operators probably in this room, that is a critical
resource. So there is a disconnect with where you are putting
your budgetary focus on and everything else from that
perspective.
The training thing, the gentleman over here, Mr. Bratton,
mentioned that there were some disconnects with some videos. We
actually discovered one of those on a fall protection video. It
was titled, ``Fall Protection: Your Lifeline to Safety,'' and
there were actually two or three citational items that MSHA has
in that video. One was where I was talking fall protection
applications, which is somewhat of a technical application of
safety, not to choke the lanyard around a rail. This particular
video shows a miner in a training video. It shows him with a
lanyard around a top rail instead of using the provided main
basket that provided anchor points.
The other item, the gentleman is working at height, and you
have a hoist, and a hook has a broken safety latch, and we
personally have been cited for broken safety latches before.
So I think there is a need for them to update their
education and training resources instead of putting more money
into enforcement. It just makes sense to us.
Mr. Roe. I thank the gentleman. I will yield back.
Mr. Mica. Thank you, and we will now yield to Congressman
Griffith.
Mr. Griffith. Thank you, Mr. Chairman.
Mr. Stoll, if you could tell me--you indicated you might
lose jobs to other countries. Who is your--who may be your
major competitor for your particular product?
Mr. Stoll. China.
Mr. Griffith. And so what you are saying is that if costs
continue to go up, and part of those costs are, of course,
fines that you pay and the things that you can't figure out, it
puts China in a better position to compete with us in the
worldwide market for your products. Is that not correct?
Mr. Stoll. That is correct. And as a business, if we have
increased costs, regulatory costs imposed on us, then
customers--it is market-driven. Customers can go other places.
Mr. Griffith. Yes. And, Mr. McNeely and Mr. Bratton, if I
could, you all started to talk about safety belts and
harnesses, and your time ran out, and I see that there is a
harness laying there on the floor and I would kind of like--I
don't know anything about the differences. Is the safety belt
like the old lap belt in the car, or what is the safety belt
like?
Mr. Bratton. The safety belt just went around your
midsection and it was tied off. The problem was that there were
numerous spinal injuries from falling.
Mr. Griffith. So if I make the analogy to the car, like we
have been making to some of these others, it would be like the
old lap belt in the cars when I was a kid, as opposed to the
shoulder belts and the airbags and the lap belt combined. Is
that what you are saying?
Mr. Bratton. I would say so. Yes, sir. What Mr. Stoll was
talking to is that the regulations still specifically describe
a belt that is not even used anymore because it is not safe.
Mr. Griffith. So technically, if they really wanted to cite
you, they could cite you for having the safer equipment. So I
could be--using that car analogy, if I was pulled over at a
roadblock to check on safety inspection and I had all the
latest airbags and a shoulder harness, technically the officer
could write me a ticket because I don't have the old-fashioned
lap belt.
Mr. Bratton. Well ----
Mr. Griffith. Is that a fair assessment? Go ahead and tell
me what the difference is. We do have a TV camera here. I would
like you to show the TV folks the four-point harness so they
can understand how safe this is who might see this at a later
date or who might be looking at the Congressional record at a
remote location.
Mr. Bratton. This is the safety harness that we were
written a citation for.
Mr. Mica. We are not going to be able to hear you.
Mr. Bratton. I am sorry.
Mr. Mica. No problem. We want you to describe it so we have
it in the record.
Mr. Bratton. This is a safety harness that Wake Stone was
cited for as being defective.
Mr. Massey, would you approach and show them the defect
that we are still fighting?
It is not very obvious.
We also contacted the manufacturer of this harness and
asked them if this harness was safe to use, and they issued a
written letter stating that this ----
Mr. Mica. So the frayed end is this ----
Mr. Bratton. Yes, sir.
Mr. Mica.--is what you were cited on?
Mr. Bratton. Yes, sir.
Mr. Mica. It is similar to the seat belt?
Mr. Bratton. Yes, sir, but not as frayed.
Mr. Mica. Thank you. I appreciate that.
Mr. Bratton. And with the analogy with the car, it is hard
to say. It is just like Mack said where you have a turn signal
that blinks too slow, or they may say that that airbag that you
have is in the wrong place, or that maybe you turned your seat
belt or whatever. That is a citation.
Mr. Griffith. And here is where it gets interesting. As I
told you all in the beginning, I used to be a criminal defense
attorney. If an officer and a sheriff--the laws may be a little
bit different in North Carolina, but if an officer pulls
somebody over because they have a faulty exhaust system that is
not built to the manufacturer's specs and you can establish
that it was, in fact, built to the manufacturer specifications,
a criminal defendant, everything from that point forward, at
least in the Commonwealth of Virginia, any other evidence, if
that was the reason for the stop, would be restricted.
So what we are saying is that we have folks who are trying
to provide jobs in the community. We hold them to a standard
that is higher than we are holding standards when you have due
process in the criminal courts. So you are being treated worse
than the criminals are. Is that correct?
Mr. Bratton. That is correct. Yes, sir.
Mr. Griffith. And that would be my opinion, as well. I will
tell you that, you know, when you hear these stories--and I
have heard these stories in Virginia, too. One that I have
heard, and it was a coal mine, they must have 10,000 rollers on
a conveyor belt, and one of the mines got cited because they
had one roller that wasn't rolling properly out of the 10,000-
some rollers. It didn't create any safety effect whatsoever.
I will also tell you that while there was no citation, I
believe, written, I was out talking to some miners on a parking
lot, and I have had the mine safety training, but one of the
folks with me had not had the mine safety training, and
somebody spotted coming up the road the MSHA folks. All of a
sudden we were being hustled off in a car because--we are not
going in the mine, mind you. We were just standing in the
parking lot. But there was a fear that standing in the parking
lot without having had the mine safety training class could get
that mine cited as a violation of safety rules, and all we were
doing was talking.
And I can tell you that words can be very powerful, but I
don't believe they can call it a mine safety problem when you
are just standing in the parking lot talking issues. Would you
agree that that is fairly typical of some things that you all
are hearing?
Mr. Bratton. Yes, sir. And also, whoever saw the MSHA
vehicle and told you that MSHA was coming is in violation
because that is advance notice.
[Laughter.]
Mr. Griffith. I am glad I didn't say where I was exactly.
And, Mr. Bratton, in this era of scarce resources, is it
your opinion that MSHA is spending most of its money in
enforcement rather than attempting to instruct and train
operators?
Mr. Bratton. Yes, sir. I believe that to be a fact.
Mr. Griffith. And I will tell you sometimes it is
frustrating because I am told that 5, 10 years ago, when
operators would come--and most of my folks are coal, and we do
have aggregates in the district--that somebody would say,
``Hey, you need to get this straightened out,'' or in the case
of the harness, ``It has gotten a little frayed, it isn't a
problem now, but make sure you keep an eye on that,'' and there
wouldn't be a citation written, or there might be a warning
written but it was down the road before you started getting
fines, and my understanding is now, at least from the folks who
talk to me in my district, that they are quick to fine and very
rarely do they say, hey, keep an eye on this, or drive a little
slower, or get that one roller fixed.
Mr. Bratton. My understanding is that if they see something
that could be interpreted as a violation, that they are
required to write that citation. So the inspectors have no
leeway to advise on, okay, I see this, this could be a problem
down the road, let's take care of it.
Mr. Griffith. Mr. Chairman, if I might take another minute.
I know I am over time, but if I could take a minute just to
pontificate.
[Laughter.]
Mr. Griffith. One of the problems I think we have in our
federal system, and it is creeping into the state systems as
well, historically the law was established to promote law and
equity, and equity was doing what was fair, even if you didn't
meet the black letter of the law; or if you violated the black
letter of the law, if that interpretation was unfair in the
circumstances, we gave our officials the authority to figure
out, okay, wait a minute, that is not a fair interpretation.
Starting at about the end of World War II, this country
went away from that, and we are all looking at black letter.
That is why the code volumes get bigger every year, because we
are trying to do black letter. But my experience is you can't
black letter everything, and perhaps we need to reestablish the
principles of equity that were founded in the Anglo-American
jurisprudence system, and by banning them, we are making the
citizens no longer have confidence.
And thank you, Mr. Chairman. I yield back.
[Applause.]
Mr. Mica. Technically under the rules of the committee, the
only one that is really permitted to applaud for Mr. Griffith
is your representative, Mr. Meadows.
[Laughter.]
Mr. Mica. So we are all out of order.
[Laughter.]
Mr. Mica. There may be additional questions that we will
have. Does anyone have any last-minute questions of the panel?
[No response.]
Mr. Mica. Witnesses, I will advise you that we may submit
additional questions to which we would ask you to respond, and
your responses will be made part of the record.
I thank you for coming out this morning.
Mr. Meadows. I am sorry. Would you yield?
Mr. Mica. I am sorry. I would be glad to yield to the
gentleman.
Mr. Meadows. I just wanted to again say thank you. The
other that I would ask you for the record that we have a few
days here, if you will give us additional examples from perhaps
other people that were not here today. Mr. Bratton, you are
probably in the best position to do that, to submit for the
record other examples of where we feel like we have had unfair
citations. That would be very helpful.
Mr. Mica. And we would welcome that. And the record is open
for seven days. If necessary, we can extend that through your
representative, Mr. Meadows. He will make certain that that
submission is part of what is referenced in the record today.
So, with that, I will thank you again, Mr. Stoll, Mr.
McNeely and Mr. Bratton, for your participation and your
testimony today. So, you are excused.
I will call up the second panel. The second panel consists
of one witness. That individual is Mr. Marvin Lichtenfels, and
he is the Deputy Administrator for Metal/Nonmetal, Mine Safety
and Health Administration.
While the staff changes the witness table, I will welcome
Mr. Lichtenfels. If you would just remain standing, sir, it is
part of our process as an investigative panel to swear in our
witnesses. Will you raise your right hand?
[Witness sworn.]
Mr. Mica. Let the record reflect that the witness answered
in the affirmative.
I would like to welcome you, sir. Your position is the
Deputy Administrator for Metal/Nonmetal Mine Safety. Welcome to
you. Since you are the only witness for this panel, you have
some leeway as far as time and providing your testimony. As I
advised the other witnesses this morning, additional
information or testimony you would like to be part of the
record, you can request that through the Chair.
So, with that, welcome, and you are recognized.
STATEMENT OF MARVIN LICHTENFELS, DEPUTY ADMINISTRATOR FOR
METAL/NON-METAL, MINE SAFETY AND HEALTH ADMINISTRATION
Mr. Lichtenfels. Thank you. Chairman Mica and members of
the subcommittee, I appreciate the opportunity to be here today
to testify about metal/nonmetal mine safety and health and the
actions MSHA and industry have taken to protect the safety and
health of the nation's metal and nonmetal miners.
Let me say at the outset that we at MSHA take the concerns
of the metal/nonmetal industry very seriously.
Mr. Mica. Sir, they are going to try to get that a little
bit closer. Thank you.
Mr. Lichtenfels. We want to maintain and build on our
history of working together to improve mine safety. What we are
doing at MSHA, as well as the mining industry, is moving mine
safety in the right direction. Compliance is improving in the
nation's mines and, most importantly, mine safety is improving
with back-to-back years of the lowest injury and fatality rates
in mining history.
MSHA has engaged in substantial outreach to metal and
nonmetal stakeholders in all areas of the country, including
meeting with aggregate associations in North Carolina, Virginia
and Florida to discuss issues of mutual concern and identify
solutions that will benefit the mining community.
We understand that our working relationships like forming
alliances with aggregate associations and others to work
together.
As far as the agency's outreach, MSHA has changed the way
it rolls out safety and health initiatives. We involve our
stakeholders and conduct outreach and training in advance of
implementation. We post training on our website so that
industry has access to the same training that MSHA inspectors
can see.
This year is the 35th anniversary of the Federal Mine
Safety and Health Act of 1977 which provides the same
protection to metal and nonmetal miners that coal miners enjoy
as a result of the Federal Coal Mine Health and Safety Act of
1969. This act has been successful. In 1977, 134 metal and
nonmetal miners lost their lives in their workplaces. By 2012,
the number had fallen to 16, equaling the record low that was
set in 2011.
While we have made significant progress since 1977, too
many metal and nonmetal miners are still being injured and
losing their lives in preventable accidents. So far this year,
there have been nine fatalities at metal and nonmetal mines.
With input from our alliance partners, MSHA has taken
several actions to reduce fatality and injury rates even
further. These include Rules to Live By, initiated in 2010,
which focuses on the most common mining deaths and how to
prevent them, Guarding 1 and 2 to reduce violations of MSHA's
guarding standard, and a policy letter MSHA published,
clarifying MSHA's fall protection standard.
MSHA has renamed the Small Mines Office the Small Mines
Consultation Bureau, which has refocused its efforts to better
assist small mines and work with the aggregate association to
identify those in need of the program's services. This office
provides courtesy inspections and on-site visits to explain
MSHA's initiatives and help operators understand and better
comply with MSHA rules and regulations.
To improve consistency in the application and enforcement
standard, MSHA has strengthened its inspector training
programs, including implementation in 2010 of a new training
program for field office supervisors. MSHA has added a course
for inspectors and supervisors on professionalism and
consistency to address concerns raised by mine operators.
In January, 2012, the agency implemented pre-assessing
conferencing, giving the operators the opportunity to resolve
issues prior to conducting citations. In 2012, MSHA conferenced
over 2,000 metal and nonmetal citations. To date, 67 percent of
those citations have been resolved without litigation. These
efforts have been successful. Metal and nonmetal total
citations are down 18 percent from 2010 to 2012.
In 2011, the all injury and fatality rate in metal and
nonmetal mines was the lowest reported in mining history.
Preliminary data for 2012 show these rates have declined even
further. Nonetheless, one mining death is one too many, and
MSHA's metal and nonmetal program area will continue to do
whatever it can, working with the industry, to reduce the
number to zero and to keep miners healthy and safe.
Thank you for the opportunity to be here today, and I would
be happy to answer your questions.
[Prepared statement of Mr. Lichtenfels follows:]
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Mr. Mica. Well, thank you. I will start with some
questions.
You have heard, again, some industry representatives say
sort of the inconsistency with which they imposes fines and
penalties and the lack of a sort of standard interpretation of
the requirements. Would you like to respond in general or to
any of the specific instances that were cited?
Mr. Lichtenfels. In general, sir, I would like to say that
there have been inconsistencies and we are trying to address
those in a number of ways. I mentioned the guarding and fall
protection particularly.
Mr. Mica. When was that?
Mr. Lichtenfels. Regarding PowerPoint, I mentioned ----
Mr. Mica. You had said that you had some programs, I guess,
to try to get the standards, standard equity in training your
MSHA inspectors?
Mr. Lichtenfels. Right. We developed training programs on
professionalism.
Mr. Mica. Tell me about those. Are some of them the most
recent, or what is the history?
Mr. Lichtenfels. It started in 2010 and 2011, and we
expanded it to include professionalism. Our supervisors attend
training every two years. Our inspectors receive training every
two years.
Mr. Mica. It is a little hard to hear you. Does that thing
extend any further, or maybe you can come up closer to it?
So, you have heard the complaints. And again, no one
benefits by anyone being injured, and certainly not by a
fatality, and I am sure the cost of a fine is miniscule
compared to loss of life and the costs incurred when something
goes wrong. However, these nine fatalities that you have cited,
had these companies previously--do you know if they had been
cited, and were there any instances of safety violations that
were cited in the nine fatalities that led to their deaths?
Mr. Lichtenfels. Yes. Without having the specifics, there
were citations issued in these situations.
Mr. Mica. But, I mean, had you--a citation was issued after
the death.
Mr. Lichtenfels. Right.
Mr. Mica. I was wondering if, through your inspection, you
had identified a situation that would have--or any of these
folks were guilty of a violation before the fatality. Was the
system working, and then someone didn't adhere to your
recommendation or your citation?
Mr. Lichtenfels. I don't have that information, but I can
----
Mr. Mica. For the record, if you could provide that to the
subcommittee.
The other issue, the lawyers touting the 35 years, have you
heard also--in fact, the gentleman sitting in the same seat
there, Mr. Stoll, and others said that the law is out of date.
Would you concur with that? One.
And then, two, has the administration or the agency
recommended to Congress, or have there been any attempts
recently to update the statute?
Mr. Lichtenfels. The standards are continually reviewed.
The rulemaking process is a long and tedious effort. The one
effort that we made recently was fall protection.
Mr. Mica. That is a rule. I am talking about statute. Quite
specifically, one of the provisions of statute was cited as out
of date according to modern technology or equipment.
Mr. Lichtenfels. I believe Mr. Stoll was talking about fall
protection standards?
Mr. Mica. Yes.
Mr. Lichtenfels. Yes. That is what I was going to say that
we addressed by policy letter, and what we did ----
Mr. Mica. But again, we have four members of Congress here.
We change the law. The law was written in 1977. Has the Mine
Safety Administration or the Obama Administration, or prior to
that the Bush or somebody, have they recommended changes to
Congress in the law that you are aware of?
Mr. Lichtenfels. No. No, sir, not that I am aware of.
Mr. Mica. Well, again, I think one of the things we are
going to do from this hearing--these hearings are nice, but if
you don't do anything to follow up, short of a lot of rhetoric.
So I will ask Mr. Meadows to head up an ad hoc group to bring
together--I think we are going to have to bring in labor folks.
Mr. Meadows' staff tells me that the Labor Committee would
oversee the authorization of that law.
But I think we are going to look at trying to get from the
administration--I don't care which administration it is. But if
there are problems with the law, or the law is 35 years old, it
needs to be updated, and they should provide the leadership to
give us some recommendations.
And then also, the committee of jurisdiction, we will ask
them if they would consider--probably technically, if they
won't do it, then we can do a joint one, or we could do it
ourselves, is follow up in Washington and drag the
administrator in and some of the other folks and see. I will
have to find out where they have attempted to do any changes in
the law.
How long have you been with them?
Mr. Lichtenfels. Five years.
Mr. Mica. Any attempt that you know of?
Mr. Lichtenfels. No major attempt.
Mr. Mica. All right. Well, maybe this will spark or be the
genesis for looking at the law itself.
How many inspectors do you all have? What is your budget?
Mr. Lichtenfels. Metal/nonmetal has about 350 inspectors
total, about 600 FTE.
Mr. Mica. Three hundred and fifty inspectors?
Mr. Lichtenfels. Yes.
Mr. Mica. And what is your budget?
Mr. Lichtenfels. The budget was approximately $9 million
prior to sequestration.
Mr. Mica. Now, I saw 143--was that metal and coal? $154
million in 2011, $154 million in fines.
Now, what is nonmetal? Do you know?
Mr. Lichtenfels. I don't have it with me, sir.
Mr. Mica. But most of that is in coal?
Mr. Lichtenfels. Um ----
Mr. Mica. Okay. So you don't know how much was collected in
fines?
Mr. Lichtenfels. No. I don't have that data.
Mr. Mica. Do you know from last year?
Mr. Lichtenfels. I don't have it with me.
Mr. Mica. It is interesting. One fellow here said $143,000
in fines to that one company, and I am sure that that is just
part of the cost because they probably had to retain counsel or
in-house counsel and the time spent appealing.
You had cited 3,000 citations. What year was that in?
Mr. Lichtenfels. That was in 2012.
Mr. Mica. In 2012?
Mr. Lichtenfels. Two thousand citations that were
accomplished, I believe.
Mr. Mica. Two thousand citations in 2012, and you don't
know how much the fines were. You said 67 percent were what?
Mr. Lichtenfels. Settled without further litigation.
Mr. Mica. So were they all litigated or contested?
Mr. Lichtenfels. No, no. Those were ----
Mr. Mica. Some people just pay up and give up, give up and
pay up?
Mr. Lichtenfels. Right; yes. Yes.
Mr. Mica. Sixty-seven percent, I am really curious about
the figure. Please provide that to the committee, and the total
fines for 2,000. I am just curious as to what the average fine
was and was there a category of lead fines and violations of
the 2,000?
Mr. Lichtenfels. The standard most frequently cited?
Mr. Mica. Yes, right. What is the violation most ----
Mr. Lichtenfels. Typically, electrical violations. Guarding
used to be number one.
Mr. Mica. What? Guarding?
Mr. Lichtenfels. Guarding used to be the number-one cited
standard.
Mr. Mica. I am sorry. I didn't, again, understand you.
Guardian?
Mr. Lichtenfels. Guarding violations.
Mr. Mica. Guarding?
Mr. Lichtenfels. Yes.
Mr. Mica. Guarding the ----
Mr. Lichtenfels. Conveyor belts, guarding of conveyor belts
to prevent accidental contact.
Mr. Mica. Oh, okay. It is an actual guard?
Mr. Lichtenfels. Yes.
Mr. Mica. Okay. And that was one, actually, that was cited
quite a bit by the panelists as you all not having consistent
standards.
Mr. Lichtenfels. Yes.
Mr. Mica. So the highest violation in the past has been on
an infraction for which you don't have the standards. Is that
what you are testifying?
Mr. Lichtenfels. What I would like to say, Mr. Chairman, is
that in 2010 we developed a PowerPoint to provide guidance to
industry, and it was in cooperation with the industry, the
National Stone, Sand and Gravel Association and a number of
other associations, and we put the first PowerPoint out on
guarding conveyors, and we followed it up in 2012 with a second
PowerPoint on guarding everything else. And since that point,
the guarding violations are down 40 percent. So the effort was
successful.
Mr. Mica. So there has been--that is no longer your primary
violation?
Mr. Lichtenfels. Right.
Mr. Mica. I think what you heard here today was a plea for
some consistency and common sense. The other thing, too, is you
do not--instead of fining them, do you not write them a warning
or something and say--like this belt that they showed, we had
one belt on the screen and the other one from a harness that
they brought here. If it appears to be fraying, can you say,
``In 30 days correct the situation or you will be fined''? I
mean, do you approach it from a standpoint of having them
actually take some action, or is this just fine city, where you
come in and levy the fine?
Mr. Lichtenfels. The Mine Act requires an MSHA inspector to
cite a violation if he sees it.
Mr. Mica. The what?
Mr. Lichtenfels. The Mine Act requires an MSHA inspector to
cite ----
Mr. Mica. Is that your interpretation, or is that ----
Mr. Lichtenfels. Yes, it is. Yes.
Mr. Mica. Well, see, there again, I think that ----
Mr. Lichtenfels. If I could answer ----
Mr. Mica. The law--we might want to look at that. I am not
as familiar with MSHA. I don't have mining that I know of in my
district. I would have to check with the CIA on that.
[Laughter.]
Mr. Mica. In any event, just a sort of commonsense
approach. I remember my dentist, who has since passed away,
probably from dealing with OSHA. But I went in one day to get
my teeth cleaned or something, some torture he did to me, and
he shows me a bottle of Whiteout. He had gotten fined with OSHA
for having this chemical, a bottle of Whiteout on his desk. We
went to town on that one. I thought we had changed some of the
procedures for OSHA to give some warning. Maybe we need to go
back and look at your agency.
So three guys show up at one plant? Is this the nonmetal,
your 350?
Mr. Lichtenfels. Yes, yes.
Mr. Mica. And how many mines do the 350 cover?
Mr. Lichtenfels. Slightly over 12,000 mines.
Mr. Mica. Twelve thousand? So they try to visit once or
twice a year?
Mr. Lichtenfels. The Mine Act requires underground mines to
be inspected four times a year and surface mines two times a
year.
Mr. Mica. Four and two. And you are meeting that?
Mr. Lichtenfels. Yes.
Mr. Mica. Okay. And they show up in pairs of three
sometimes? Is that customary?
Mr. Lichtenfels. That wouldn't be customary, no. Normally
it is one ----
Mr. Mica. I know that sounds kind of rude, rude to show up
to someone who hasn't had any fines. We heard that testimony
today. Have you heard that incident, where three show up and
say, you guys haven't been fined, we are going to find
something, and then harass them?
Mr. Lichtenfels. No, I was not aware of that.
Mr. Mica. Do these guys, the operators, have some ability
to--not whistle blow, but to let the agency know that there are
people who are exceeding reasonable approaches to enforcement?
Mr. Lichtenfels. We have formed alliances with a number of
state associations, and we ask ----
Mr. Mica. But someone overseeing the 350, or you, is the
only thing for them to do is call you up anonymously and say
they busted our chops and they are just not being fair? How
does someone say that there are poor performers? I mean, you
probably have 325 of these guys who are doing their job every
day, minding their P's and Q's, but it sounds like you have
some people who are harassing folks unduly. Is there an appeals
process or some way that they could whistle blow?
Mr. Lichtenfels. There is no formal process, but we do get
phone calls and emails and letters, and we respond ----
Mr. Mica. I think that is another thing, Mr. Meadows, when
we are looking at revising the law--I mean, the reference would
tell us that every dog has his day in court, but it doesn't
sound like every mine operator has a fair process.
Mr. Lichtenfels. There is a formal process for contesting a
violation.
Mr. Mica. But that is not what I am talking about. That
sounds like it is fairly expensive. Also, I would like to see
some resolution. Maybe we can get these things over in a hurry.
I think the first thing is the responsibility needs to be
changed just from the enforcement. I could see a certain kind
of violation where they would be cited and fined immediately,
but others in which there is some ability to correct the
situation, and then a fine imposed if they don't comply.
So I think we need to go back and look at the whole law and
make it make a little bit more sense. I would like to see the
recommendations, and I think we could convene with some of your
folks, too.
The other thing, too, is I heard that there are
international standards?
Mr. Lichtenfels. Yes.
Mr. Mica. And you all comply to international standards, I
imagine. And then you go above and beyond that for U.S.
standards. Would that be a fair description?
Mr. Lichtenfels. There are consensus standards such as the
National Electric Code, the ISO standards, and various other
standards. The mine standards took those into consideration
when they were drafted, but they were drafted in the mid-1980s.
Most of them accept the prior standards that were in effect
from years before that.
Mr. Mica. And again, I think it is important that that be
updated. On mine standards, is there like an international--I
don't know. Again, I am learning. Is there an international
mine safety standards panel within whatever it is?
Mr. Lichtenfels. There are some international committees.
Mr. Mica. Do we belong?
Mr. Lichtenfels. We participate, yes.
Mr. Mica. And also for the record, maybe you could tell us
the last participation, find out from your folks what our
participation level has been, and it would also be interesting
where we differ, where the United States has different
standards from the international, because it sounds like even
the manufacturers are having difficulty getting standards out
of your agency. Again, the best practices, that is what we
want, or the best configuration of equipment.
Mr. Lichtenfels. If I could address two of those issues,
the fall protection was an example of what we did to try to
clarify a standard. Many of our standards are considered
performance standards where the operator finds the best way to
comply with the standard, and then the inspector shows up and
decides whether it meets our standards. It is difficult because
it is not specific in many cases. But we give the operator
leeway to try to comply with it.
One of the problems with the fall protection standard that
was read this morning was that it didn't have a number of what
height there was a danger of falling from. It just said where
there is a danger of falling. So we enlisted the industry, the
inconsistency problem, what is a hazard, what is not a hazard,
and we by policy letter adopted a portion of the OSHA standard
that said anything above 6 feet is a hazard and needs to have
fall protection. I think it was well-received by industry, that
they now had a number that they could comply with and at least
made it a little more clear, and we tried to do that with fall
protection, and we tried to do the same thing with the guarding
PowerPoints, and I think that has been well-received by
industry. Our hope is to continue to do that as these issues
come up.
Mr. Mica. Thank you.
Mr. Meadows, our Vice Chairman, go ahead.
Mr. Meadows. Thank you, Mr. Chairman.
And I understand that you are not the one who is doing
these inspections. I saw you over there writing copious notes.
Is there anything that alarms you today about what you have
heard here from our three previous witnesses?
Mr. Lichtenfels. Well, I am concerned about the
inconsistencies, and if three people showed up for that
purpose, I am a little concerned about that, and I will look
into that.
Mr. Meadows. But it is not just the three people because we
had--I mean, the majority of the people here stood up and said
the same thing.
Mr. Lichtenfels. Yes.
Mr. Meadows. So, inconsistencies. So how do you, as a
deputy administrator, plan to change that?
Mr. Lichtenfels. Well, I think we are making some headway.
I believe that, with the training that we have put in place,
there have been fewer complaints.
Mr. Meadows. In your budget you say training, but your
budget--and you had renamed something to talk about how you
were going to train, and I think in your testimony you talk
about renaming it, but your budget doesn't reflect a training
emphasis. It reflects an enforcement emphasis. So why would
your budget not match with your testimony?
Mr. Lichtenfels. What I am referring to is training our own
inspectors.
Mr. Meadows. Oh. So you are going to support training for
your inspectors?
Mr. Lichtenfels. No. No, sir. We have been training our
inspectors. We ask them to get 48 hours of training every two
years.
Mr. Meadows. To write better citations? What do you do?
Mr. Lichtenfels. To promote consistency, to understand the
standards. We go over a large number of subjects.
Mr. Meadows. So do you give them raises based on how
consistent they are?
Mr. Lichtenfels. No, sir. That is not the way ----
Mr. Meadows. So they could be inconsistent and still get a
raise.
Mr. Lichtenfels. They get evaluated by their supervisor
based on their performance.
Mr. Meadows. So that performance is based on how many
citations they write?
Mr. Lichtenfels. No, sir.
Mr. Meadows. So what is your matrix for evaluating their
performance?
Mr. Lichtenfels. Do they complete their inspections.
Mr. Meadows. So as long as they do two inspections on
surface mines ----
Mr. Lichtenfels. That is only part of it, sir. There are
reports they have to complete, and the citations ----
Mr. Meadows. That is what I am trying to understand. I
mean, how do you evaluate whether they are doing a good job or
not?
Mr. Lichtenfels. The procedure is the supervisor in the
field offices reviews everything that is written by an
inspector.
Mr. Meadows. So he reviews the citations that are written
by the inspector?
Mr. Lichtenfels. Yes, and he travels with that inspector at
least once a year, but in most cases more often, to evaluate
their performance in the field.
Mr. Meadows. Is there a slide? Can you put up that slide?
This slide indicates a downward trend from 2000 to 2012 in
terms of the incident rate on aggregate operations. And you can
see it was trending down, and then all of a sudden what we saw
is in about 2007 a huge spike in fines. There didn't seem to be
really any correlation between fines and safety according to
this particular one. It looks like fines went up 300 percent,
and yet there is no correlation. Can you explain why that is?
Mr. Lichtenfels. Part 100, which determines how a penalty
is assessed.
Mr. Meadows. What was that?
Mr. Lichtenfels. Part 100, 30 CFR Part 100. That is the
standard that determines how a citation--what--the assessment
for a citation. That was revised in 2007.
Mr. Meadows. Who revised it? Congress didn't revise it; is
that correct?
Mr. Lichtenfels. MSHA revised the standard.
Mr. Meadows. So that is something that you ----
Mr. Lichtenfels. That was based on following the 2006
disasters that occurred, and Congress felt that the penalties
may not have been high enough.
Mr. Meadows. But we see Congress was wrong there. I mean, I
know that comes as a shock to everybody.
[Laughter.]
Mr. Meadows. But if you are saying that Congress said there
is a direct correlation with fines, this chart would say that
there is not. Do you agree with that?
Mr. Lichtenfels. It certainly looks that way.
Mr. Meadows. Why don't we go back to the pre-2006 way of
doing business? You know, we are losing jobs here. It boils
down to we may get to zero fatalities. The way that we get to
zero fatalities is if we have zero jobs, we will get there. I
mean, that is how you get there.
So my concern is that for every time we make burdensome
regulations, it means, as my colleague from Virginia pointed
out, it means jobs going to China, and we can't afford any more
jobs going to China. Do you believe we can afford any more jobs
going to China?
Mr. Lichtenfels. Jobs are very important, sir.
Mr. Meadows. So you wouldn't be in favor of anything that
sends more jobs to China?
Mr. Lichtenfels. No.
Mr. Meadows. Okay. So let's go back to the citations, then.
So if we went back to the 2006 way of doing citations, do you
see that making any effect really in terms of anything? Because
it is trending down anyway at this point.
Mr. Lichtenfels. If I could say that MSHA is in the process
of revising Part 100. It has been sent over ----
Mr. Meadows. To make it worse, or better?
[Laughter.]
Mr. Lichtenfels. It will be put out for comment. OMB is
reviewing it. It will be put out for comment, and then ----
Mr. Meadows. Okay. Is there a matrix today where if I had a
certain kind of violation, I know that I am facing a $1,000
fine?
Mr. Lichtenfels. It can be determined through Part 100,
yes.
Mr. Meadows. So there is a matrix. You could give me this
thing that says that if I have a seatbelt that is frayed, I
know exactly what the charge is going to be. I don't believe
that ----
Mr. Lichtenfels. It could be provided, yes.
Mr. Meadows. What do you mean, it could be provided? Has it
been provided to all of these guys here?
Mr. Lichtenfels. There is a point system that is used for
the assessment process that is based on the history of previous
violations at a mine.
Mr. Meadows. Okay, that hits on another area, the history
of previous violations. We heard testimony earlier from the
Association where they talked about that it is easier to just
pay some of the fines. The problem with paying the fines is
that when you do that, you now have a history of violations. So
it requires them to hire litigation to go after defending
themselves on some of the ridiculous stuff we have seen here
today, because if they don't, then they are what you would call
an habitual violator, and that is not fair. Instead of just
saying we are going to make you have to defend yourself
because, if not, we are going to come back and we are going to
penalize you greater. Is that true?
Mr. Lichtenfels. History is considered as one of the
factors. Yes, sir.
Mr. Meadows. So it is true that if I don't appeal, that you
are going to consider me a violator.
Mr. Lichtenfels. The assessment is based on history.
Mr. Meadows. Either way, it is a problem, as the Chairman
has pointed out. Either way, it is a real problem. So when we
see this, you are saying it is open now for comment. Comment
from who? OMB is looking at it. Comment from the guys that you
are fining, or comments from the 350 people that are working
for you?
Mr. Lichtenfels. No, that is for public comment.
Mr. Meadows. So who has been noticed at this point for this
public comment from OMB?
Mr. Lichtenfels. I'm sorry?
Mr. Meadows. Who has received the notice to make comments?
Mr. Lichtenfels. It has not reached that stage yet, sir.
Mr. Meadows. Okay. So ----
Mr. Lichtenfels. It is the same review, and then there will
be a proposed rule, and then there will be ----
Mr. Meadows. So what is the causal point of why it is being
reviewed? I mean, who decided that we are going to review that?
Mr. Lichtenfels. I don't know that.
Mr. Meadows. So, your boss?
Mr. Lichtenfels. Somebody higher than me.
Mr. Meadows. Somebody higher than you decided. And what was
the causal reason why you are reviewing that?
Mr. Lichtenfels. I don't know.
Mr. Meadows. Can you get that to this committee?
Mr. Lichtenfels. Yes.
Mr. Meadows. Okay. I want to finish up, and I appreciate
the Chair's indulgence. Let me finish up with just a couple of
more.
You mentioned PowerPoints, that you have come out with a
few PowerPoints. Are those PowerPoints, if the miners follow
those PowerPoints, you can assure us that there are not going
to be citations with violations there?
Mr. Lichtenfels. I would hope so.
Mr. Meadows. You would hope so.
Mr. Lichtenfels. Yes.
Mr. Meadows. So will you, for the record, today say if they
follow those and they get citations, that your agency will
waive that? Will you say that for the record today?
Mr. Lichtenfels. I will say if they follow that PowerPoint,
they should not receive a citation.
Mr. Meadows. I understand ``should not.'' But that's
different. They should not have gotten some of the citations
they have already gotten, in my opinion. What I am asking you
is would you waive those and just concede that those are out of
line?
Mr. Lichtenfels. If they brought that PowerPoint in to
prove their point, we would certainly consider that, sir.
Mr. Meadows. I will tell you, this is very frustrating just
to hear what we are hearing. We are talking about people's
lives. We are talking about jobs. We are talking about putting
people out of work.
I want to finish with this last. You said that under MSHA,
that you were required to write a citation. I have read through
reams of this. Some people say that I just can't sleep, so I
read all this crazy stuff, but it is your interpretation that
it requires a citation. It sounds like there is a whole lot of
discretion, because when I read it, it doesn't look like it
requires a citation. My interpretation would be different than
yours. Are you sure that the law says that you have to write a
citation?
Mr. Lichtenfels. That is our interpretation.
Mr. Meadows. Well, let me show you how unfair that is.
Mr. Lichtenfels. You have to observe a violation before you
write it up.
Mr. Meadows. Okay. That safety belt that is here, is the
safety belt still here? Show that to the gentleman, because I
know he didn't get to see it. Be careful, because you may trip
over an MSHA violation right there.
[Laughter.]
Mr. Meadows. So is that something that you believe should
have been cited?
Mr. Lichtenfels. If Mr. Bratton said he had a letter from
the manufacturer saying it was safe, I would think it should be
okay.
Mr. Meadows. So you are saying that it should have been
cited, but ----
Mr. Lichtenfels. The inspector who observed it apparently
felt that way, sir.
Mr. Meadows. Okay, and that brings me to my closing
thought. If we put all of the discretion in the hands of 350
inspectors, it depends on how bad of a morning they had. I can
tell you, I would be wining and dining those guys, take them to
dinner and making sure that they ----
[Laughter.]
Mr. Meadows. But it really depends on if they have a bad
hair day on whether they are going to cite something. And with
this particular thing, what you are saying is that if we get a
letter that says that that is in compliance, that that citation
should be what?
Mr. Lichtenfels. I would think we should have ----
Mr. Meadows. I know what you think, but let me just ask you
----
Mr. Lichtenfels. If it was brought to my attention, I would
see that it was vacated.
Mr. Meadows. All right. So any problems that we have here
in western North Carolina, should we be bringing them to your
attention?
Mr. Lichtenfels. I would hope it doesn't need to be that
way.
Mr. Meadows. We have heard multiple complaints today. Who
do we go to? Because I will tell you, if I don't get this
fixed, I don't have a job.
[Laughter.]
Mr. Lichtenfels. The process is that we encourage all mine
operators to do this, to discuss each situation with the
inspector on the site, try to resolve it at that point.
Mr. Meadows. But that doesn't happen.
How many of you would agree that that happens on a regular
basis, that the inspector on-site really tries to mitigate it
and not write a citation? Does that happen?
[Chorus of noes.]
Mr. Meadows. So we have a problem maybe with the inspector
just in my area, but I don't think so because we have gentlemen
from other areas here as well.
I appreciate the Chair's indulgence. I will yield back.
Mr. Mica. Thank you.
I recognize Dr. Roe.
Mr. Roe. Thank you, Chairman.
I think the Chairman brought up something a minute ago,
that what we have done in this country is we have taken a set
of laws and we have thrown the common sense out the window.
Mr. Lichtenfels, I appreciate you being here. Let's take
you off the job you have and put you back in the real world
where all these people that you see here are trying to comply,
trying to make a living, and trying to have a safe workplace.
You saw Mr. McNeely. I read the statistics in his workplace,
years without a violation. Would you feel safe putting that
harness on and doing anything? I would. Would you feel safe in
that?
Mr. Lichtenfels. He says he got a letter from the
manufacturer.
[Laughter.]
Mr. Lichtenfels. I didn't see the situation. Yes, sir, I
would.
Mr. Roe. Okay. Thank you. I would, too. I absolutely would.
I would rappel off the fire tower on the Fourth of July. It is
amazing what you will do for votes.
[Laughter.]
Mr. Roe. The belt that we saw was not unsafe, but what Mr.
Meadows just got through saying is that businesses like ours,
30-something years, private businesses, cannot fight you
people. We write the check, and then we have affirmed that we
are not a safe workplace, so when you come back again, you find
something and the fines go up. It is a Catch-22, and I think
you have to put some common sense back in. You can sense my
frustration, and I am putting you back in the private sector
where you spent 20-something years. I know you did.
Mr. Lichtenfels. Yes, sir.
Mr. Roe. And you would look at that and if you were working
back where you were, you would be offended by this right here,
and your frustration--you could try to run these businesses,
and I applaud your effort at MSHA trying to make it safe for
folks and clearly saying that a surface mine is safer than a
deep mine, there is no question about that. We know what
happened at the Big Branch Mine just a couple of years ago.
The fatalities you mentioned, obviously zero should be our
goal in the workplace. The gentleman who had a heart attack in
Mr. McNeely's shop, if he died on the spot, would that count as
a fatality, a mine fatality?
Mr. Lichtenfels. Most likely not, sir.
Mr. Roe. Okay. It would not, but it was a violation. He was
removed, and that was considered an injury that day when he
left. So at least fatalities are not medical things, if a
diabetic had a problem or a medical ----
Mr. Lichtenfels. Right.
Mr. Roe. Okay, that helps me there. And how do you explain
the safety record of MSHA versus the industry being higher? How
do you look those folks in the eye and write them a citation?
Mr. Lichtenfels. Well, that is a good question, and we are
taking that seriously, and we meet on a monthly basis at
headquarters to review the issue. A large portion of those
claims are hearing loss, so it is difficult. The rest are just
strains and sprains, and we are certainly dealing with it.
Mr. Roe. Okay. And how much of the money that you take in
comes in fines? I think Mr. Meadows made a great point a minute
ago about how like minds think, but I am thinking if you put a
training video on the web, that is your video. Why in the world
should they have to bring. It is yours. You created it, and if
that is what you are supposed to follow, is it like the IRS,
where if you follow my advice, you are still going to need?
Because that is exactly what happens with the IRS, and that is
one of the frustrations that the American people have. If they
follow what they believe is the correct thing to do, shouldn't
they be okay?
Mr. Lichtenfels. Yes, sir.
Mr. Roe. Okay. So if they follow those videos that are on
the--the PowerPoints that you have on the web, I am hearing you
right out here for the record, that should just be wiped off,
cleaned off the slate.
Mr. Lichtenfels. We should certainly review that and
discuss it. Yes, sir.
Mr. Roe. Why does it need review?
Mr. Lichtenfels. Well, if we put a video out there, we
should make sure that it is accurate. I agree.
Mr. Roe. I totally agree with that, but if they follow one
you put out ----
Mr. Lichtenfels. Right.
Mr. Roe.--and the international standards of, let's say, a
company like Caterpillar, which was mentioned today, following
those fall standards that are out there, if they know right now
that that is a violation, how in the world do you match those
two?
Mr. Lichtenfels. It is difficult. I understand that. I was
in the industry for 43 years, and I do understand it. But the
point is each situation has to be evaluated on a case-by-case
basis.
Mr. Roe. But if you follow the rules, which these people
are, you shouldn't have to be explaining to somebody why you
follow the rules. It shouldn't even be an issue. Do you agree
with that?
Mr. Lichtenfels. Yes, sir.
Mr. Roe. Does any of the fine money that they pay in the
millions, tens of millions of dollars, go back into the
training we have talked about for compliance? Where does it go?
Mr. Lichtenfels. The money goes to the Treasury.
Mr. Roe. Treasury?
Mr. Lichtenfels. Yes, sir.
Mr. Roe. Okay. So that would be something we would have to
do legislatively.
Mr. Lichtenfels. Yes, sir.
Mr. Roe. That is something we could look at.
With that, I will yield back.
Mr. Mica. Thank you.
Congressman Griffith?
Mr. Griffith. Thank you, Mr. Chairman.
Let me congratulate you on being here today. I know
somewhere in some room in Washington, you drew the short straw.
[Laughter.]
Mr. Griffith. And I do appreciate that. And I want to
congratulate you on recognizing that there have been some
problems and that you all are working on consistency. Your
testimony here today, I understand you are in a tight spot,
that you are trying to defend the policies that you didn't
necessarily make. But at the same time, it is hard for you to
make blanket statements, ``Yes, I will fix this,'' when you may
not have that authority to fix this or that, and I appreciate
that.
Understand, I am coming up with some tough questions here
in a minute.
[Laughter.]
Mr. Griffith. But I did want to get that out there because
I think you have done a nice job with a difficult situation.
And I also want to say that I think one of the problems
that I hear about all the time--it hasn't come up previously--
which you are not an example of is that apparently there are a
lot of inspectors being hired who have limited or no experience
in the mining industry, and they are coming in after having
either limited or no experience and becoming mine inspectors.
And so I appreciate the fact that you do come from the
industry, and I would just make that note that there are a lot
of folks out there that are frustrated with somebody who might
have six months in a mine, like some of the mine inspectors,
and after they go through a training class they are out telling
folks with experience like yours how to do the job that these
folks have been doing very safely for a number of years. So I
would just make that comment.
Now, these questions that I am going to ask you are not
directed at you personally, but they are tough questions, and I
think we need answers to them.
Do you know of or do you have any reason to believe that
there is an official quota system with the MSHA fine and
citation process?
Mr. Lichtenfels. We have made it clear there is no quota
system.
Mr. Griffith. Is there any unofficial MSHA fine or citation
system?
Mr. Lichtenfels. Did you say an MSHA quota system again?
Mr. Griffith. Yes, sir. I am asking you about unofficial.
Mr. Lichtenfels. No unofficial.
Mr. Griffith. Now, I am going to bore down into this a
little bit further, because sometimes there can be no official
or maybe not even a recognized unofficial system, but sometimes
policies create a system even if the people who are creating
those policies don't intend to. A large police department
somewhere in Virginia once created a system that they didn't
see as quotas at the time until a judge pointed it out to them
that they had created a quota system. Here is what they were
doing. If you wrote four tickets, you got moved up the line to
get the newest patrol car, and all the guys wanted the newest
patrol car.
So I want you to think about it and think about your
answer. Is there any system where the people who get those--I
saw that chart with the big spike. Is there any system whereby
if you are writing more citations, that you are getting
promotions, I know it wouldn't be new squad cars but some kind
of new equipment, a new car to drive, a newer car to drive? I
mean, is there some kind of system that may not have
intentionally been set up as a quota system but which could
have the possibility of setting up a quota system because there
are rewards to the inspectors for writing the citations?
Mr. Lichtenfels. None that I am aware of, sir.
Mr. Griffith. Can I ask you to go back and look and see if
there are any systems whereby if you write more citations or
you get more fine money in, one is that placed in your
personnel jacket as to what your fines are and how many
citations you write; and two, are there any side benefits to
writing more citations that nobody really thought about? I am
not accusing you of doing this intentionally, but they might
have unintentionally created a bonus a reward system, in
essence a quota system? Would you go back and check on that,
and could you report back to the subcommittee on that?
Mr. Lichtenfels. Yes, sir.
Mr. Griffith. I would greatly appreciate that. Again, I did
not mean that personally, but I have seen this happen sometimes
unintentionally, because when you look at the Mine Safety Act,
we can agree or disagree on whether or not you should write the
citation. But when you see that chart, and I had not seen that
chart before this point, it is pretty telling that from 1977
until whenever that spike was--let me see that chart again,
that graph that you had. There you go. It looks like somewhere
about 2005 to 2008, dealing with the same law, we had a major
shift in policy.
So if it isn't that there is some kind of inadvertent bonus
system, then there must have been a shift in the policies
coming out of the administration of MSHA and something that
MSHA may want to take a look at and that we may want to take a
look at. But you would agree that that spike indicates that
there must have been some kind of shift in policy.
Mr. Lichtenfels. There was a change in Part 100 in the
assessment standards.
Mr. Griffith. And who was responsible for that? That was
MSHA's interpretation?
Mr. Lichtenfels. Yes, sir.
Mr. Griffith. Of some regulations?
Mr. Lichtenfels. Yes, sir.
Mr. Griffith. And just for the record, I don't believe you
were with the agency at that time; is that correct?
Mr. Lichtenfels. I started in 2008.
Mr. Griffith. Okay. So you didn't have anything to do with
that, and I appreciate that.
Those are my concerns. I do appreciate the fact that you
are after the consistency issue. I think it is more than just
the guards. Anything that you can do in your position, having
been in industry, to make these things make more sense so that
people feel comfortable. Everybody wants us to have mine
safety, everybody. We are all in agreement on that. And what
the operators across the board are saying is give us some
consistency, let us talk to you about the policy, which I think
you have indicated that you are open to. Let us talk about the
policies and make sure the policies make sense, and then let's
have some consistent enforcement so that we are following the
rules and we are following what we think is the speed limit
sign that says 35, and we are driving at 35 and not being fined
when we are driving at 35, and somebody tells us, well, it says
35, but we really meant 28. Can you do that for us and keep
working on that?
Mr. Lichtenfels. Yes, sir.
Mr. Griffith. I appreciate that very much, and I appreciate
this hearing, Mr. Chairman. I think it is extremely important
that we had this. Congressman, thank you for bringing us to
your district, and I yield back.
Mr. Mica. Thank you. I do want again to thank Congressman
Meadows for bringing this to my attention and making it his
priority for the subcommittee and our committee's power.
Again, these hearings are nice, but we do need to follow
up, so we will have a number of follow-up items.
Is this the first time you have testified before a
committee of Congress?
Mr. Lichtenfels. Yes, sir.
Mr. Mica. Who is the administrator?
Mr. Lichtenfels. Neal Merrifield.
Mr. Mica. I guess he regularly testifies?
Mr. Lichtenfels. I don't know that he has either. Normally,
it is the Assistant Secretary.
Mr. Mica. Well, we will also contact the committees of
legislative authorization and jurisdiction. I will ask Mr.
Meadows to kind of lead that effort. There are two ways we can
tackle this. The thing that concerns everybody is that people
feel they have lost discretion in the way these fines are
applied, and then trying to get common sense back into play,
but I imagine those fines also cover coal?
Mr. Lichtenfels. Yes, I would guess.
Mr. Mica. Okay. If you could get us that information, we
will put it in the record because I think it is important.
But I think follow-up is key to making a change in a law
that is 35 years old that has been cited as part of the
problem, and then trying to make certain that the folks are
treated fairly, to have some due process, or just some process.
Again, the goal is safety for workers in the workplace. We
would like to get fatalities to zero, if that is at all
humanely possible. We have made some progress, but in the
meantime, again, some over-regulation, over burden, we end up
losing more and more jobs out of the United States and closing
down industry and business and opportunity.
So with that being said, again, we appreciate your coming
forward today. We will follow up.
Mr. Meadows, any closing comments?
Mr. Meadows. No, just to thank you for coming. It is never
fun to come. You knew when you came you were going to have to
face the medicine, and I appreciate your willingness to do
that.
I look forward to working with you to solve this issue. I
believe that it is solvable. I heard testimony that what we
want are safe mines. I know Mr. McNeely, and the people that
work for him are his family. Some are literally his family, but
they are his family, and that is what this is across the board.
I see some of these guys and their family members, and they
don't want to operate in an unsafe environment.
So we have two goals. They want to have safe mines. Let's
work together to make sure that we don't put people out of
business.
With that, I just want to say thank you all, and I will
yield back to the Chairman.
Mr. Mica. With that, I thank the witnesses. I thank those
who came out today to join us. I am particularly grateful to
the community of Bakersville, and also Mitchell County for the
use of these historic facilities at this rather historic
hearing.
There being no further business before the Subcommittee on
Government Operations, this hearing is adjourned. Thank you.
[Whereupon, at 12:16 p.m., the committee was adjourned.]
APPENDIX
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