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# Legislative Bulletin.................................................January 16, 2008

**Contents:**

**H.R. 2768**---Supplemental Mine Improvement and New Emergency Response
Act (S-MINER)

H.R. 2768---Supplemental Mine Improvement and New Emergency Response Act
(S-MINER) (*Miller, George, D-CA*)

**Note the Conservative Concerns Starting on Page 6.**

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, January 16^th^, subject to a likely structured
rule. A summary of the rule and any amendments made in order will be
provided in a separate RSC document.

**[Summary]{.underline}**: H.R. 2768 would implement a variety of new
and updated federal mandates on mine operators, regarding such matters
as conveyor belts, air monitoring devices, communications systems, and
ventilation. The bill would also bypass the current administrative
procedures for the Mine Safety and Health Administration (MSHA) to
promulgate safety regulations. Highlights of the legislation are as
follows:

[Emergency Response Plans]{.underline}.

-   Requires mine operators to amend their emergency response plans,
    within four months of this bill's enactment, to provide for a
    post-accident communication and tracking system between underground
    and surface personnel using certain updated technologies, as
    referenced in the bill and tested by the National Institute for
    Occupational Safety and Health (NIOSH, an entity within the Centers
    for Disease Control).

-   Requires that mine operators "promptly" update their emergency plans
    as NIOSH certifies new components to enhance systems performance.

-   Prohibits any miner from being disciplined based on information
    obtained from an electronic communications and tracking system.

-   Requires that the Secretary of Labor, by June 15, 2008, issue final
    interim regulations for the installation of underground mine refuges
    that are consistent with design criteria recommended by NIOSH.

-   Extends from December 31, 2007 to three months after S-MINER's
    enactment the deadline for MSHA to finalize rules for mine seals
    (structures for sealing off abandoned areas and making them
    explosion-proof), and includes details about what such rules must
    include.

-   Establishes new requirements regarding the integrity of ventilation
    controls.

-   Requires MSHA to issue interim final regulations [by January 31,
    2008]{.underline} to put new standards for conveyor belts into
    place.

-   Requires that all conveyor belts already in use in underground coal
    mines be replaced no later than December 31, 2012 with belts that
    can meet NIOSH-recommended flame resistance standards and that limit
    smoke and toxic emissions. Any conveyor belt installed in a coal
    mine after the date of S-MINER's enactment would have to meet these
    new requirements.

-   Requires that the Labor Secretary, not later than June 20, 2008,
    issue regulations that essentially prohibit the use of "belt air,"
    unless the mine operator can demonstrate to the Secretary (to the
    satisfaction of the Secretary) that such use is required for safety
    and that certain procedures and safeguards are utilized. "Belt air"
    refers to the use of air intake and conveyor belts in the same
    entryway into the mountain.

-   Requires oral communications between those inspecting a mine prior
    to a work shift and those beginning the next shift (regarding
    conditions in the mine).

-   Requires that, no later than May 1, 2008, all underground mine
    operators must install atmospheric detection and warning systems in
    all underground areas where miners normally work and travel. The
    systems would have to provide real-time information on carbon
    monoxide levels and withstand explosions and fires to the "maximum
    extent possible."

-   Requires a study of, and increased regulations on, retreat mining,
    which is mining that removes coal that had been left there to hold
    up the roof of the mine.

-   Creates a NIOSH program to randomly remove and test field samples of
    each model of self-rescue device used in an underground coal mine.

-   Applies the conveyor belt mandates to underground metal and nonmetal
    mines---not just coal.

-   Directs MSHA to give priority to the approval of any self-rescue
    device that permits the replenishment of oxygen without requiring
    the device user to remove it and to the approval of any underground
    communication device that provides for communication between
    underground and surface personnel via a wireless two-way medium. The
    bill would also list certain health and technology research
    priorities for NIOSH.

[Enforcement Authority]{.underline}.

-   Explicitly prohibits interference with MSHA inspectors during the
    course of their activities (currently, such prohibition has just
    been common practice, rather than law).

-   Requires MSHA to establish a Master Inspection program that would
    lift the current limits on inspectors for five years so that new and
    existing personnel could work together during this timeframe, if
    resources to do so are adequate and permit retired inspectors to
    perform such services for MSHA under contract without loss of
    retirement benefits.

-   Creates a Senate-confirmable Miner Ombudsman (authorized at "such
    sums") within the Labor Department's Office of the Inspector General
    to be a clearinghouse for miner complaints and reports of safety
    violations, incidents, injuries, etc. The Ombudsman would have to
    provide **[plastic wallet cards, refrigerator
    magnets]{.underline}**, or other such items to miners so that the
    miners know how to contact the Ombudsman.

-   Makes it easier to cite mine operators for safety violations, and
    implements a new penalty (up to \$250,000) on operators with a
    pattern of violations. Miners would have to be withdrawn from the
    entire mine when such a pattern is found, though an operator could
    appeal such classification through demonstrated improvement in
    conditions. Unpaid penalties could lead to a closing of the entire
    mine.

-   Directs mine operators to notify MSHA within the time specified in
    the citation that any violations previously identified and cited by
    MSHA have been abated. If this notice is not provided before the
    stated deadline, MSHA would have to issue a withdrawal order to
    prohibit miners from entering the affected area until MSHA can make
    its own further assessment.

-   Increases the current \$50,000 for a variety of MSHA violations to
    \$100,000 (\$150,000 for larger, more serious violations). MSHA
    could no longer take into account the effect of a fine on an
    operator's financial viability when assessing penalties, and
    "operator" would be defined by aggregating all operators under one
    ownership or controlling entity.

-   Establishes a minimum penalty of \$10,000 and a maximum of \$100,000
    for retaliating against miners who report safety and health
    violations.

-   Makes operators liable for any unpaid fines of its subcontractors,
    in certain instances.

-   Preempts state law to prohibit attorneys for the Labor Department
    who contact miners or non-managerial mining employees during the
    course of a safety investigation from disciplinary action or
    disbarment under state law.

-   Prohibits attorneys who represent mine operators in a matter from
    simultaneously representing individual miners in the same matter.

-   Clarifies that the liability of directors, officers, and agents for
    violations of mining law and regulations does not change because of
    the form of the mine operator's business (e.g. becoming a limited
    liability corporation does not change the operator's liability under
    law).

-   Directs the Labor Secretary to create an advisory committee to study
    whether there should be federal licensing of mines, mine operators,
    mine controllers, or various mine personnel.

[Rescue, Recovery, and Incident Investigation Authority]{.underline}.

-   Requires that, within 30 days of S-MINER'S enactment, MSHA establish
    a central communications emergency call center for mine operations,
    staffed and operated 24 hours per day, 7 days per week by MSHA
    employees with adequate experience and training to handle emergency
    mine situations. A single national phone number would have to be
    created for this service, and the Secretary would have to ensure
    that all miners and mine operators are issued **[laminated
    cards]{.underline}** with emergency call center information.

-   Requires that MSHA's website contain the geographic coordinates of
    all U.S. mines and mine impoundments, including abandoned mines, as
    determined by a global positioning system. Also authorizes the
    Secretary of Labor to obtain copies of historic mine maps (maps
    showing the underground networks) and create a central repository
    for them.

-   Requires mine operators to notify MSHA within an hour of the time at
    which the operator realizes that any of the following has occurred:

> \--a fire not required to be reported more promptly (i.e. within 15
> minutes, as under current law);
>
> \--a sudden change in the mine atmospheric conditions in a sealed
> area;
>
> \--a coal or rock outburst that causes the withdrawal of miners; or
>
> \--any other event that needs to be examined to determine if the
> working conditions in the mine are safe, as set forth by regulations
> promulgated by the Secretary.

-   Implements a variety of steps aimed at making it easier for mine
    rescue teams to operate in an organized fashion on site and for
    non-rescue personnel (such as family members) to be on site without
    interfering with the work of the rescue team.

-   Directs the Secretary to establish guidelines for rescue operations
    that set clear chains of command and lines of demarcation among the
    various involved entities.

-   Requires an operator to comply with requests of the authorized
    representative of the Labor Secretary in connection with rescue or
    recovery, subject to a \$250,000 non-compliance penalty.

-   Requires that MSHA designate a family liaison during rescue
    operation to act as primary communicator.

-   Gives the Labor Secretary's representative onsite at a mine accident
    the sole authority to determine when a rescue becomes a recovery and
    when a recovery should cease altogether, based on whether continuing
    such efforts pose a "serious danger" to rescue workers or other
    workers.

-   Allows for independent (i.e. non-MSHA) investigations of multiple
    fatality mine accidents.

[Respirable Dust Standards]{.underline}.

-   Reduces by 50% the permitted limit in current law for coal dust, as
    recommended by NIOSH, and the permitted dose would be adjusted to
    reflect hours actually worked. A separate limit would be established
    for silica dust (which applies to non-coal mines as well), also as
    recommended by NIOSH. Compliance sampling would be done by MSHA, not
    mine operators (as under current law).

-   Requires that all coal mine operators use the NIOSH-developed and
    certified Personal Dust Monitor (PDM) for all coal dust sampling
    (traditional methods would still be used for silica dust sampling).
    All underground miners would have to be equipped with PDMs, so that
    they would be able to adjust their work to keep their exposure below
    the applicable limits.

[Other Health Requirements]{.underline}.

-   Directs the Labor Secretary to adopt the NIOSH-created exposure
    limits for chemical and other hazards to which miners may be exposed
    as the Labor Department's Permissible Exposure Limits (PELs). NIOSH
    would have to submit annual (at minimum) updates to the PELs, which
    the Labor Department would automatically have to adopt or exceed.
    These procedures bypass the normal rulemaking procedure at the Labor
    Department.

-   Applies the asbestos exposure standard of the Occupational Safety
    and Health Administration (OSHA) to the mining industry (by trumping
    the MSHA standard without the normal rulemaking process).

**[Additional Background]{.underline}**: In June of 2006, President Bush
signed into law the Mine Improvement and New Emergency Response Act (S.
2803, Public Law 109-236), which created new programs, a new permanent
office, and new regulations and requirements dealing with mine safety
and mine emergencies. To view the RSC Legislative Bulletin on that
legislation, click here:
<http://www.house.gov/hensarling/rsc/doc/LB_060706_Suspensions.pdf>.
Click here to see the overwhelmingly bipartisan 381-37 roll-call vote
for the legislation: <http://clerk.house.gov/evs/2006/roll234.xml>.

That legislation, and presumably S-MINER, are based on the mine
accidents at Sago, Aracoma, Darby and others in 2006, as well as on the
August 2007 tragedy of Crandall Canyon, Utah, where six miners were
trapped by a collapse and three other individuals lost their lives in
rescue efforts.

According to the Bureau of Labor Statistics Industry Injury and Illness
Data--2006, mining experienced the lowest incidence rate in 2006 among
goods-producing industry sectors---3.5 cases per 100 full-time workers.
In comparison, the rate for agriculture, forestry, fishing and hunting
was 6.0 cases, for construction---5.9 cases, and for manufacturing---6.0
cases.

Coal is the leading source of electricity in the United States today.
Some analysts have asserted that coal is to the U.S. what oil is to
Saudi Arabia. To learn more about how coal is converted to electricity,
as well as other facts about coal, please visit this webpage:
<http://www.worldcoal.org/pages/content/index.asp?PageID=108>.

**[RSC Bonus Fact]{.underline}**: NIOSH has a staff of over 1,400 people
in Washington, DC; Cincinnati, OH; Morgantown, WV; Pittsburgh, PA;
Spokane, WA; and Atlanta, GA. Though NIOSH was created in 1970 (the same
time as OSHA), it was not given specific authority to perform coal mine
health research until 1977. <http://www.cdc.gov/niosh/about.html>

**[Committee Action]{.underline}**: On June 19, 2007, the bill was
referred to the Education and Labor Committee, which, on October 31^st^,
marked up and ordered the bill reported to the full House by a
party-line vote of 26-18. During hearings on the bill, representatives
of the National Mining Association and non-union miners (who make up 75%
of the mining workforce) were [NOT]{.underline} allowed to testify as
witnesses.

**[Possible Conservative Concerns]{.underline}**: Numerous aspects of
this legislation may raise concerns for conservatives, including, but
not necessarily limited to, the following:

-   [Private-Sector Mandates on Small and Large Businesses]{.underline}.
    As detailed below, the bill contains at least a dozen new federal
    mandates on the private sector, affecting small and large
    businesses, and companies doing coal, metal, and nonmetal mining.
    Such mandates include those on conveyor belts, continuous motoring
    devices at mine seals, personal dust monitors, atmospheric
    monitoring systems, post-accident communication and tracking
    systems, belt air, seals, refuge chambers, ventilation controls,
    roof screens, and respirable dust and other chemicals. Many
    businesses have reported that they would not be able to absorb the
    increased costs and requirements without significantly scaling
    back---or shutting down---their operations.

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-   [Intergovernmental Mandate]{.underline}. The bill would preempt
    state law to prohibit attorneys for the Department of Labor who
    contact miners or non-managerial mining employees during the course
    of a safety investigation from being disciplined or disbarred.

-   [Violation of UMRA]{.underline}. CBO estimates that the costs of
    these mandates to the private sector in the bill would be **[at
    least \$1.1 billion]{.underline}** and thus exceed the annual
    threshold established in the Unfunded Mandates Reform Act or UMRA
    (\$131 million in FY2007, adjusted annually for inflation). CBO
    admits that this figure is a low estimate, since it has no basis for
    estimating the cost of several of the mandates.

-   [Boon for Environmentalists and Minor Energy Sources]{.underline}.
    While the bill would affect all types of mining, its biggest target
    is coal mining. Increasing the cost of coal mining will either
    increase the cost of coal or make coal mine operators less
    profitable (forcing them to close operations, fire workers, etc.).
    Such occurrences would weaken the coal industry, which provides
    [more than half](http://www.archcoal.com/vital.asp) of America's
    electricity, and thus would relatively strengthen the market
    positions of minor energy sources (like wind) and deliver a win for
    environmentalists looking to take down the coal industry.

-   [Bypasses Public Input for Rulemaking]{.underline}. In many ways,
    the bill would bypass the normal rulemaking process for mining
    safety. As one example, the bill would require NIOSH to forward all
    of its recommended exposure limits for air contaminants to the Labor
    Secretary, who then **[must]{.underline}** require MSHA to adopt
    them as enforceable health standards. Public participation in
    rulemaking would be circumvented, as would the input of other
    scientific entities besides NIOSH. Furthermore, this would remove
    the authority of the Labor Secretary as the prime decision-maker in
    promulgating federal rules for the Labor Department, since NIOSH is
    an entity within the Health and Human Services Department. The bill
    would push NIOSH into a regulatory and policy-setting role for which
    it, as a research and education agency, is not prepared.

[]{.mark}

-   [Particular Harm to the West]{.underline}. While the bill would
    affect mining in all parts of the country, one could argue that the
    bill's negative affects will be more profound in the West. Because
    mountains are larger in the West, any mandate to replace conveyor
    belts and such would be a greater burden on mines that require more
    linear feet (or miles) of belts.

> Additionally, the prohibition on the use of belt air to ventilate the
> face of underground mines would particularly harm mining in Utah,
> since according to the Utah Mining Association, most, if not all, of
> the underground coal mines in Utah use belt air. Without the ability
> to continue to use belt air, construction of additional mine entries
> or access ways into the mine would be required, thereby reducing the
> support for the roof of the mine and increasing the potential for
> dangerous roof falls and face outbursts. Though such mine operators
> could petition to keep using belt air, neither a timely nor a positive
> response is guaranteed.

-   [One-Size-Fits-All Approach]{.underline}. The bill incorporates a
    one-size-fits-all approach to mine safety and regulations, making
    virtually no distinctions between the varying needs of different
    types of mining in different parts of the country under different
    conditions.

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-   [Not Enough Time for the MINER Act to Work]{.underline}. The MINER
    Act was just signed in to law 1-1/2 years ago and has not been given
    enough time to work. Many of the MINER Act's requirements are in the
    midst of being implemented by MSHA, according to the Republican
    staff of the Education & Labor Committee, and some of the reports
    required by the MINER Act have either not yet been released or have
    just been released a few weeks ago. Thus, the passage of S-MINER
    seems premature and could actually delay the implementation of
    aspects of the bipartisan MINER Act.

**[Administration Position]{.underline}**: The Administration is
expected to issue a Statement of Administration Policy (SAP) indicating
that the President's senior advisers would recommend he veto this
legislation, should it make it to his desk in its current form.

**[Cost to Taxpayers]{.underline}**: CBO estimates that H.R. 2768 would
authorize \$19 million in FY2008 and \$121 million over the
FY2008-FY2012 period. The bill would also increase revenues by less than
\$500,000 in FY2008 and by \$68 million over the FY2008-FY2012 period.
Note the mandates section below.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, the bill would implement a variety of
new federal mandates on the private sector, as detailed below.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes, the bill contains one
intergovernmental mandate and numerous private sector mandates, as
follows:

[Intergovernmental]{.underline}. The bill would preempt state law to
prohibit attorneys for the Department of Labor who contact miners or
non-managerial mining employees during the course of a safety
investigation from being disciplined or disbarred.

[Private Sector]{.underline}. The bill contains a litany of private
sector mandates, including:

-   Installing conveyor belts that meet certain flame resistance
    requirements by 2012 (CBO estimates a \$600 million cost to the
    private sector over five years);

-   Monitoring behind certain mine seals using a continuous motoring
    device (CBO estimates a \$120 million cost to the private sector
    over five years);

-   Equipping each miner with a personal dust monitor (CBO estimates a
    \$100 million cost to the private sector over five years);

-   Installing an atmospheric monitoring system (CBO estimates a \$60
    million cost to the private sector over five years); and

-   Providing a certain post-accident communication and tracking system
    (CBO estimates a \$200 million cost to the private sector over five
    years).

Therefore, CBO estimates that the aggregate cost of the private-sector
mandates in the bill would be **[at least \$1.1 billion]{.underline}**
and thus exceed the annual threshold established in UMRA (\$131 million
in FY2007, adjusted annually for inflation).

However, CBO also notes that it has no basis for estimating the costs to
the private sector of some other mandates in the bill, including: belt
air, seals in underground coal, metal, and nonmetal mines, refuge
chambers, ventilation controls, roof screens, standards for respirable
dust and other chemicals, and reporting and notification requirements.

Thus, the true cost to the private sector would likely far exceed \$1.1
billion over five years.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Education and
Labor Committee, in [House Report
110-457](http://thomas.loc.gov/cgi-bin/cpquery/R?cp110:FLD010:@1(hr457)),
asserts that, "H.R. 2768 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in clause
9(d), 9(e) or 9(f) of rule XXI."

**[Constitutional Authority]{.underline}**: The Education and Labor
Committee, in [House Report
110-457](http://thomas.loc.gov/cgi-bin/cpquery/R?cp110:FLD010:@1(hr457)),
cites constitutional authority in Article I, Section 8, Clause 3 (the
congressional power to regulate interstate, international, and
Indian-related commerce).

**[Outside Organizations]{.underline}**: H.R. 2768 is being
[supported]{.underline} by the United Mine Workers of America and the
United Steelworkers.

H.R. 2768 is being [opposed]{.underline} by at least the following
organizations:

-   Alliance for Worker Freedom (will likely key-vote the bill)

-   American Composites Manufacturers Association        

-   American Foundry Society

-   American Iron and Steel Institute                                  

-   American Road and Transportation Builders Association

-   Associated Builders and Contractors    

-   Associated Equipment Distributors

-   Associated General Contractors                                   

-   Association of Equipment Manufacturers

-   Engine Manufacturers Association        

-   Independent Electrical Contractors                               

-   Industrial Minerals Association of North America

-   Mason Contractors Association of America                 

-   National Association of Home Builders                       

-   National Association of Manufacturers

-   National Association of Wholesaler-Distributors           

-   National Federation of Independent Business

-   National Industrial Sand Association 

-   National Lime Association

-   National Marine Manufacturers Association                 

-   National Mining Association

-   National Roofing Contractors Association

-   National Stone, Sand, & Gravel Association

-   Printing Industries of America                           

-   Salt Institute

-   U.S. Chamber of Commerce (will likely key-vote the bill)

-   U.S. Steel

-   Utah Mining Association

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718