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65–962 PDF 2011

MODERNIZING MINE SAFETY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, MAY 4, 2011 

Serial No. 112–19 

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

( 

Available via the World Wide Web: 

http://www.gpoaccess.gov/congress/house/education/index.html 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

[Vacant] 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Kristi L. Noem, South Dakota 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

[Vacant] 

Lynn C. Woolsey, California, Ranking 

Donald M. Payne, New Jersey 

Dennis J. Kucinich, Ohio 

Timothy H. Bishop, New York 

Mazie K. Hirono, Hawaii 

George Miller, California 
(III) 

C O N T E N T S 

Page 

Hearing held on May 4, 2011 ................................................................................. 1 

Statement of Members: 

Walberg, Hon. Tim, chairman, Subcommittee on Workforce Protections .... 1 

Prepared statement of ............................................................................... 3 

Questions submitted for the record ......................................................... 97 

Woolsey, Hon. Lynn, ranking minority member, Subcommittee on Workforce Protections ............................................................................................ 3 

Prepared statement of ............................................................................... 5 

Additional submission: Documents received from Tony Oppegard, attorney for Charles Scott Howard .......................................................... 44 

Statement of Witnesses: 

Bumbico, Anthony S., vice president of safety, Arch Coal, Inc., on behalf 

of the National Mining Association ............................................................. 29 

Prepared statement of ............................................................................... 31 

Response to questions submitted for the record ..................................... 99 

Ellis, Mark G., president, Industrial Minerals Association—North America ................................................................................................................... 12 

Prepared statement of ............................................................................... 14 

Griesemer, Louis, on behalf of the National Stone, Sand & Gravel Association ............................................................................................................ 6 

Prepared statement of ............................................................................... 8 

Roberts, Cecil Edward, Jr., president, United Mine Workers of America 

(UMWA) ......................................................................................................... 19 

Prepared statement of ............................................................................... 22 

(1) 

MODERNIZING MINE SAFETY 

Wednesday, May 4, 2011 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 10:03 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Kline, Rokita, Bucshon, 

Gowdy, Ross, Kelly, Woolsey, Payne, Kucinich, and Miller. 

Staff present: Andrew Banducci, Professional Staff Member; 

Katherine Bathgate, Press Assistant; Casey Buboltz, Coalitions and 

Member Services Coordinator; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative Assistant; Barrett Karr, Staff Director; Ryan Kearney, Legislative Assistant; Brian Newell, Press 

Secretary; Krisann Pearce, General Counsel; Molly McLaughlin 

Salmi, Deputy Director of Workforce Policy; Ken Serafin, Workforce 

Policy Counsel; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Professional Staff Member; Joseph Wheeler, Professional Staff Member; Aaron Albright, Minority Communications Director for Labor; 

Tylease Alli, Minority Hearing Clerk; Daniel Brown, Minority Staff 

Assistant; Jody Calemine, Minority Staff Director; Brian Levin, Minority New Media Press Assistant; Jerrica Mathis, Minority Legislative Fellow, Labor; Richard Miller, Minority Senior Labor Policy 

Advisor; Megan O’Reilly, Minority General Counsel; Julie Peller, 

Minority Deputy Staff Director; and Michele Varnhagen, Minority 

Chief Policy Advisor and Labor Policy Director. 

Chairman WALBERG. Good morning. A quorum being present, the 

subcommittee will come to order. We welcome to the subcommittee 

each of you. 

This is our second opportunity in the 112th Congress to examine 

the safety of America’s miners. The loss of life last month in 

Idaho—in an Idaho silver mine as well as the mining tragedy at 

Upper Big Branch are reminders of the need to remain vigilant in 

our efforts to promote mine safety. 

Over the last year, the Mine Safety and Health Administration 

has proposed a number of changes to mine safety, enforcement. 

Changes include reestablishing pre-shift examinations for safety 

and health violations and a new emergency rock dusting standard. 

The administration has also proposed significant changes to the 
2 

regulations that govern when a mine is deemed to be in a patter 

of violation. 

While it has often failed exercising all the enforcement tools at 

its disposal, MSHA is to be commended for taking action. In fact, 

just last month, the administration, for the first time in its 40-year 

history, placed two mines in pattern of violations status. Additionally, due to the work of the committee and dedicated journalists, 

the public is finally able to take a look at internal audits that reveal more information about MSHA’s enforcement procedures. 

There is still a number of questions surrounding MSHA’s recent 

proposals. And we hope to get some answers today. Most importantly, we want to determine whether these changes will produce 

the safety results we hope to achieve. That is why the testimony 

from today’s witnesses is so important. 

Our witnesses have more than 100 years of combined mine safety 

experience and the professional expertise and personal knowledge 

will help inform Congress about the current state of mine safety 

enforcement, whether MSHA, in their opinion, is on the right track 

and what other tools are needed to safeguard the health and wellbeing of miners. 

We also plan to review whether there are examples of federal 

laws or regulations hindering proactive efforts on the job site that 

may lead to better safety conditions. Washington cannot have all 

the answers. I can’t believe I made that statement, Mr. Chairman. 

[Laughter.] 

But I truly believe that. And may I reiterate? Washington cannot 

have all the answers, and it should not stand in the way of an employer’s effort to go above and beyond the law in providing a safe 

work environment. Punishment is important, but putting punishment before prevention is not in the best interests of America’s 

workers. 

As Mr. Roberts has noted in the past, most of the mining industry does the right thing. Let us ensure federal policies hold bad actors accountable and partner with the good actors on behalf of 

worker safety. 

An example of this kind of collaborative effort is the successful 

development and deployment of coal dust explosibility meters, or 

CDM. The device developed by the Federal National Institute for 

Occupational Safety and Health takes real-time samples of rock 

dust to help determine its combustibility. Previously, MSHA laboratories could take weeks to examine a rock dust sample. Now 

miners have a useful tool on-site that immediately enhances safety. 

Advancing strong mine safety protections is a goal that we all 

share and one we must all work to achieve. Miners work under extreme conditions to provide the natural resources our nation needs. 

And they deserve our support. 

Policy makers, enforcement officials and mine operators each 

play an important role in helping to ensure miners go home to 

their families at the end of their shift. As I noted at our last mine 

safety hearing, workers safety is best advanced when we work together. And I hope we are capable of doing so. 

At this time, I would like to recognize my colleague from California, Lynn Woolsey, the senior Democratic member of the subcommittee, for opening remarks. 
3 

[The statement of Mr. Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, 

Subcommittee on Workforce Protections 

Good morning, and welcome to the Subcommittee on Workforce Protections. This 

is our second opportunity in the 112th Congress to examine the safety of America’s 

miners. The loss of life last month in an Idaho silver mine, as well as the mining 

tragedy at Upper Big Branch, are reminders of the need to remain vigilant in our 

efforts to promote mine safety. 

Over the last year, the Mine Safety and Health Administration has proposed a 

number of changes to mine safety enforcement. Changes include reestablishing 

preshift examinations for safety and health violations and a new emergency rock 

dusting standard. The administration has also proposed significant changes to the 

regulations that govern when a mine is deemed to be in a ‘‘pattern of violations.’’ 

While it has often failed exercising all the enforcement tools at its disposal, 

MSHA is to be commended for taking action. In fact, just last month the administration—for the first time in its 40 year history—placed two mines in ‘‘pattern of 

violations’’ status. Additionally, due to the work of the committee and dedicated 

journalists, the public is finally able to take a look at internal audits that reveal 

more information about MSHA’s enforcement procedures. 

There are still a number of questions surrounding MSHA’s recent proposals, and 

we hope to get some answers today. Most importantly, we want to determine whether these changes will produce the safety results we hope to achieve. That is why 

the testimony from today’s witnesses is so important. Our witnesses have more than 

100 years of combined mine safety experience, and their professional expertise and 

personal knowledge will help inform Congress about the current state of mine safety 

enforcement, whether MSHA—in their opinion—is on the right track, and what 

other tools are needed to safeguard the health and well-being of miners. 

We also plan to review whether there are examples of federal laws or regulations 

hindering proactive efforts on the jobsite that may lead to better safety conditions. 

Washington cannot have all the answers and it should not stand in the way of an 

employer’s effort to go above and beyond the law in providing a safe work environment. Punishment is important, but putting punishment before prevention is not in 

the best interest of America’s workers. As Mr. Roberts has noted in the past, most 

of the mining industry does the right thing. Let’s ensure federal policies hold bad 

actors accountable, and partner with the good actors on behalf of worker safety. 

An example of this kind of collaborative effort is the successful development and 

deployment of coal dust explosibility meters, or CDEM. The device, developed by the 

federal National Institute for Occupational Safety and Health, takes real time samples of rock dust to help determine its combustibility. Previously, MSHA laboratories could take weeks to examine a rock dust sample. Now miners have a useful 

tool on site that has immediately enhanced safety. 

Advancing strong mine safety protections is a goal that we all share and one we 

must all work to achieve. Miners work under extreme conditions to provide the natural resources our nation needs, and they deserve our support. Policy makers, enforcement officials, and mine operators each play an important role in helping to 

ensure miners go home to their families at the end of their shift. As I noted at our 

last mine safety hearing, worker safety is best advanced when we work together, 

and I know we are capable of doing so. 

At this time, I would like to recognize my colleague from California, Mrs. Woolsey, 

the senior Democrat member of the Subcommittee, for her opening remarks. 

Ms. WOOLSEY. Thank you, Mr. Chairman. And thank you for convening this very important hearing. 

It has been 13 months since the Upper Big Branch disaster, yet 

Congress has failed to act on repeated requests from the Mine 

Safety and Health Administration, from MSHA. Miners and their 

families have asked also. And they want us to modernize the Mine 

Safety Act. 

MSHA has repeatedly asked our assistance because they need 

better tools to protect all miners. They need changes to a dysfunctional pattern of violations provision, stronger sanctions to penalize 
4 

mine operators, operators who provide advanced notice of inspection, and basics like subpoena authority. 

Following MSHA’s March 3rd testimony, which outlined the need 

and justification for legislation to modernize the Mine Act, Mr. Miller, Mr. Rahall and I reintroduced comprehensive mine safety legislation on April the 15th. It largely mirrors the Robert C. Byrd Mine 

Safety Protection Act that was brought to the floor last year. And 

it contains the reforms that MSHA has requested. 

One year ago on May 24th in Beckley, West Virginia, this committee heard from the governor of West Virginia and the families 

of miners who were killed at Massey’s Upper Big Branch mine. 

Gary Quarles, a miner who lost his son, testified that it was common for Massey Energy to provide advanced notice of the inspections to miners underground. Under the current Mine Act, that is 

classified as criminal misdemeanor. Misdemeanors tend to receive 

scant attention from prosecutors. In fact, not one advanced notice 

violation has been criminally prosecuted since 1977, even though 

MSHA inspectors have had to seize phones at mines to prevent tipoffs. 

MSHA has secured injunctions, but the obstruction of justice continues because there is so little consequence to flaunting the law. 

We look forward to hearing from our witnesses on whether they 

support strengthening this provision. 

We would also like to hear whether our witnesses think miners 

who raise concerns about safety are adequately protected against 

retaliation under existing law. In Beckley, we learned that miners 

were fearful of making safety complaints because it was made very 

clear to them that their jobs would be on the line if they did. 

Alice Peters, whose son-in-law, Edward Dean Jones, was killed 

in that explosion, testified that he complained at least seven times 

about ventilation problems. But his supervisors told him that he 

would lose his job if he caused the mine to stop production. 

He was trapped. His son had cystic fibrosis, and he needed the 

job for health insurance. 

Of course, retaliation is not confined to West Virginia. In 2007, 

a miner in Kentucky showed video of leaking underground seals to 

MSHA. It took 3 years of litigation, hundreds of thousands of dollars in attorney fees just to get the operator to pull the disciplinary 

letter from the employee’s file. 

We will be asking our witnesses whether MSHA should reform 

the badly broken pattern of violations process to provide for timely 

sanctions when any mine operator, whether it is coal, metal or 

stone, chronically violates mine safety standards. Or should miners 

continue to be endangered while serial recidivists appeal citations 

for years on end before MSHA can act? 

Finally, Mr. Chairman, we would like to learn if the coal industry is adopting modern technologies such as coal dust explosivity 

meters to help prevent disasters, and whether Congress needs to 

take action, as we did in the MINER Act, to speed the modernization of mine safety and bring that Act into the 21st century. 

I look forward to hearing from each of our witnesses. What a 

great panel we have. Thank you. 

Thank you, Mr. Chairman. 

[The statement of Ms. Woolsey follows:] 
5 

Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member, 

Subcommittee on Workforce Protections 

Mr. Chairman, thank you for convening this important hearing. It has been 13 

months since the Upper Big Branch disaster, yet Congress has failed to act on repeated requests from the Mine Safety and Health Administration (MSHA), miners 

and their families to modernize the Mine Act. 

MSHA has repeatedly asked for our assistance to provide them with better tools 

to protect all miners. They need reforms to a dysfunctional Pattern of Violations 

provision. They need stronger sanctions to penalize mine operators who provide advance notice. And they need basics like subpoena authority. 

Following MSHA’s March 3 testimony which outlined the need and justification 

for legislation to modernize the Mine Act, Mr. Miller, Mr. Rahall and I re-introduced 

comprehensive mine safety legislation on April 15. It largely mirrors the Robert C. 

Byrd Mine Safety Protection Act that was brought to the floor last year and contains reforms that MSHA has requested. 

One year ago, on May 24 in Beckley, West Virginia, this Committee heard from 

the Governor of West Virginia and the families of miners who were killed at 

Massey’s Upper Big Branch mine. Gary Quarles, a miner who lost his son, testified 

that it was common for Massey Energy to provide advance notice of inspections to 

miners underground. Under the current Mine Act this is classified as a criminal 

misdemeanor. Since misdemeanors tend to receive scant attention from prosecutors, 

not one advanced notice violation has been criminally prosecuted since 1977, even 

though MSHA inspectors have had to seize phones at mines to prevent tip-offs. 

MSHA even secured injunctions, but the obstruction of justice continues because 

there is so little consequence to flaunting the law. We look forward to hearing from 

our witnesses on whether they support strengthening this provision. 

We would also like to hear whether our witnesses think miners who raise concerns about safety are adequately protected against retaliation under existing law. 

In Beckley, we learned that miners were fearful of making safety complaints because it was made clear that their jobs were on the line. Alice Peters, whose sonin-law Edward Dean Jones, was killed in the explosion, testified that he complained 

at least seven times about ventilation problems, but his supervisors told him that 

he would lose his job, if he caused the mine to stop production. Dean was trapped: 

his son had cystic fibrosis and he needed the job for health insurance. 

Of course, retaliation is not confined to West Virginia. In 2007, a miner in Kentucky showed video of leaking underground seals to MSHA. It took 3 years of litigation and hundreds of thousands of dollars in attorney fees just to get the operator 

to pull the disciplinary letter from the employee’s file. 

We will be asking our witnesses whether MSHA should reform the badly broken 

Pattern of Violations process to provide for timely sanctions when any mine operator, whether it is coal, metal, or stone, chronically violates mine safety standards. 

Or should miners continue to be endangered while serial recidivists appeal citations 

for years on end before MSHA can act? 

Finally, we would like to learn if the coal industry is adopting modern technology 

such as coal dust explosivity meters to help prevent disasters, and whether Congress needs to take action, as we did in the MINER Act, to speed the modernization 

of mine safety. 

I look forward to hearing from each of our witnesses today. Thank you. 

Chairman WALBERG. I thank you. 

Pursuant to committee rule 7-C, all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow questions for the record, statements 

and extraneous material referenced during the hearing to be submitted for the official record. 

It is now my pleasure to introduce our distinguished witness, 

Louis Griesemer—and I hope I pronounced that right. 

Did I? Am I close? Okay, thank you. 

Louis Griesemer is president and CEO of Springfield Underground, Incorporated. Mr. Griesemer has more than 30 years of experience in aggregate industry. After earning his engineering degree from Washington University in St. Louis, he began working 
6 

full-time for his family’s aggregate business as safety director and 

mine planner. Mr. Griesemer is a past chairman of the National 

Sand, Stone, Gravel Association’s board of directors. Mr. Griesemer 

is testifying today on behalf of National Stone, Sand and Gravel 

Association. 

Mark Ellis is president of the Industrial Minerals Association, 

North America, which is the principle trade association representing the industrial minerals industry in North America. Mr. 

Ellis has unique experiencing having served as an attorney with 

the Federal Mine Safety and Health Review Commission and as a 

senior policy adviser to the assistant secretary of labor at MSHA. 

Mr. Ellis is a graduate of the University of Denver College of Law 

and its College of Business Administration. 

Cecil Roberts, Jr. is president of the United Mine Workers of 

America. Mr. Roberts held a variety of jobs within the coal mines 

of West Virginia before becoming a full-time union activist. He was 

appointed to serve as a member of the West Virginia University Institute for Labor Studies and Research Advisory Board in 1996. Mr. 

Roberts graduated from West Virginia Technical College and in 

1997 received an honorary doctorate in humanities from West Virginia University of Technology. 

Anthony Bumbico is vice president of safety with Arch Coal, Incorporated, one of the largest coal producers in the United States. 

Mr. Bumbico directs the health and safety functions for each of 

Arch’s subsidiary companies, which operate in six states and employs over 4,700 individuals. Mr. Bumbico was an underground coal 

miner for 7 years. Mr. Bumbico is testifying on behalf of the National Mining Association. 

And I welcome each of you. 

We will start with Mr. Griesemer. 

Thank you for being part of our witness panel. 

STATEMENT OF LOUIS A. GRIESEMER, PRESIDENT, SPRINGFIELD UNDERGROUND, INC., TESTIFYING ON BEHALF OF 

NATIONAL STONE, SAND & GRAVEL ASSOCIATION 

Mr. GRIESEMER. Thank you, Chairman Walberg, Ranking Member Woolsey and members of the subcommittee for inviting me to 

testify on behalf of the National Stone, Sand and Gravel Association on worker safety and health. Also, we gratefully acknowledge 

this committee’s work of last summer and the work of dedicated 

staff to focus mine safety reform on areas of greatest risk. 

I am Louis Griesemer, president of Springfield Underground in 

Springfield, Missouri. Springfield Underground was established by 

my father in 1946. I myself am an MSHA-certified safety trainer 

and got my start in the aggregates business in our safety department. I know our employees personally. They are committed to 

their work. And they are committed to safety on the job. 

The National Stone, Sand and Gravel Association represents the 

fresh stone, sand and gravel or construction aggregates industries. 

Its member companies produce more than 90 percent of the 

crushed stone and more than 70 percent of the sand and gravel 

consumed annually in the United States. There are 10,000 aggregates operations in the United States. And 70 percent of the nation’s counties are home to an aggregates operation. 
7 

The crushed stone, sand and gravel industry has long been committed to the safest and most helpful possible production of aggregates. This has resulted in the safest period in our sector’s history. 

This was the 10th year in a row in which our sector achieved a 

lower injury rate than in the prior year. Our workplace safety enhancements have come from constant efforts to train and remind 

employees of dangers they need to avoid. 

However, it seems that MSHA is not so focused. We believe that 

MSHA should work more with us on programs that help instill employees’ genuine respect for the precautions that MSHA and the 

companies require to ensure they return home safe every night. 

Our industry CEOs have met several times with MSHA’s leadership in an effort to work collaboratively to reduce injuries, illnesses 

and fatalities. 

Of increasing frustration to NSSGA members, however, is what 

the aggregates industry believes is inconsistent and unpredictable 

enforcement. A review of data shows that while injury rates continue to fall, there has been a substantial increase in citations labeled significant and substantial. It is only sensible to ask why is 

this happening and how can this be fair. We believe a more enlightened approach would be more effective in achieving positive 

results. 

The issuance of citations for each apparent discrepancy, no matter how unlikely it would ever contribute to a hazard, heightens 

frustration and inhibits collaboration. After all, only 3 years ago 

did the agency for the first time complete 100 percent of the annual 

two inspections of surface and four inspection of underground facilities mandated in the act. This was well after our industry had 

begun its decade-long string of yearly reductions in injury rates. 

So for some, the two inspections for surface and four for underground operations may be appropriate. But for others, it may not 

be the best use of resources. 

This is especially true, we believe, given the severe budgetary 

constraints on the Federal Government and the ongoing economic 

slow-down. Moreover, if MSHA’s resources are limited or reduced, 

we contend that a reduction in the number of inspections is preferable to reductions in compliance assistance, training and other 

areas that are helping industry improve safety. We would be 

pleased to work with MSHA and representatives of miners to update approaches to regulation and enforcement of mine safety. 

Furthermore, a specific point, we believe that modernization 

would be achieved if MSHA would establish a pattern of compliance program, which would give some form of credit to operators 

for outstanding adherence to MSHA standards and keeping low injury rates. It is anticipated that this would help the agency streamline and improve the efficiency of the inspection process, thus freeing resources to be targeted at areas of greatest risk. 

Ideas for this include providing credit for excellent compliance so 

that future citation assessments can see financial costs mitigated, 

allowing inspectors to issue a notice in lieu of citation for 

diminimus standard and/or elimination of citation if immediate 

abatement is accomplished by the operator and developing guidelines for inspectors directing that they focus their inspection hours 

on the most troubled operations. And if MSHA is interested in safe-
8 

ty and health management systems, as reflected in the impending 

June rulemaking proposal on this matter, then perhaps MSHA 

could at least provide an incentive to operators, especially small 

ones, by granting credits against other enforcement actions such as 

reduced civil penalties in the manner described above for abatement credits. We respectfully urge, in the effort to modernize mine 

safety, that more be done in the area of assisting operators in compliance, allowing optimal resources to be focused on the areas of 

greatest risk. 

Thank you. That concludes my statement. And I would be happy 

to respond to any questions. 

[The statement of Mr. Griesemer follows:] 

Prepared Statement of Louis Griesemer, on Behalf of the National Stone, 

Sand & Gravel Association 

Thank you Chairman Walberg, Ranking Member Woolsey and Members of the 

Subcommittee for inviting me to testify on behalf of the National Stone, Sand & 

Gravel Association (NSSGA) on worker safety and health. Also, we gratefully acknowledge this committee’s work of last summer and the work of dedicated staff to 

focus mine safety reform on areas of greatest risk. 

I am Louis Griesemer, president of Springfield Underground in Springfield, Mo. 

Springfield Underground was established by my father in 1946. My whole career 

has been with Springfield Underground. I, myself, am an MSHA-certified safety 

trainer and got my start in the aggregates business in our safety department. I 

know our employees personally. They are committed to their work and they are 

committed to safety on the job. We are proud of the accomplishments of our team 

and we look forward to improving steadily. 

MSHA is integral to our operations. We are continually in the process of examining and maintaining our operations for compliance. Training of employees is an 

essential part of the process. My company has long been committed to worker safety, health and training. It is part of our commitment to all who work for us. Today, 

I am also the NSSGA co-chair of the MSHA-NSSGA Alliance, which has worked for 

a decade to establish useful training and education materials to enhance safety and 

health. 

Aggregates Industry 

The National Stone, Sand & Gravel Association represents the crushed stone, 

sand and gravel—or construction aggregates—industries. Its member companies 

produce more than 90 percent of the crushed stone and more than 70 percent of the 

sand and gravel consumed annually in the United States. There are more than 

10,000 construction aggregate operations nationwide. Almost every congressional 

district is home to a crushed stone, sand or gravel operation. Proximity to market 

is critical due to high transportation costs, so 70 percent of our nation’s counties 

include an aggregates operation. Of particular relevance to this hearing, 70 percent 

of NSSGA members are considered small businesses. 

Industry’s Demonstrated Commitment to Health and Safety 

The crushed stone, sand and gravel industry has long been committed to the 

safest and most healthful possible production of aggregates. We’re very pleased that 

this commitment to safety and health has resulted in the safest period in our sector’s history. In fact, last year, we finished with an injury incidence rate of just 2.33 

injuries per 200,000 hours worked. This was the 10th year in a row in which our 

sector achieved a lower injury rate than in the prior year. Also, this was the 19th 

of the last 20 years of consecutive rate reductions. 

Addressing the Causes of Accidents, Injuries and Illnesses 

Our workplace safety enhancements have come from constant efforts to train and 

remind employees of dangers they need to avoid. Just as in construction and manufacturing industries, primary dangers stem from the movement of heavy equipment. 

Employees must be constantly vigilant. 

Not only do injury rates continue to decline in our segment of the industry, fatal 

accidents also continue to decline. Last year there were about 30,000 fatalities in 

automobile accidents on the Nation’s highways. Comparatively, there were 23 fatal 

accidents at metal nonmetal mines; there were five fatalities among aggregates op-
9 

erator employees. While every fatal accident is a tragedy, we believe this reflects 

a remarkable level of safety controls at these workplaces. 

As to what has been primary to our success, I would say that it has been a constant industry-wide effort to impress upon employees the importance of keeping 

their wits about them in the workplace, and not taking shortcuts. In spite of such 

training and reminders, there are still problems with employee compliance. No less 

than half of the fatal accidents last year were a result of employees’ disregarding 

the most fundamental precautions around heavy equipment. 

However, it seems that enforcement by MSHA is focused on everything but employee personal responsibility and precautions. We wish that MSHA would work 

with us more on programs that help instill in employees genuine respect for the precautions that MSHA and the companies require. 

Year in and year out, MSHA inspections focus on a wide variety of things, many 

of which cannot be shown to have a material bearing on accidents or accident prevention—things such as adequacy of machine guards in inaccessible areas, fire extinguisher inspections on spare fire extinguishers, electrical ground testing on office 

equipment, the condition of the outer jackets of low voltage electrical cables, and 

so on. It is not that such things are unimportant. It is just that the most prevalent 

hazards are elsewhere. As long as human nature leads employees to believe they 

can take risks without consequences, we will, unfortunately, continue to experience 

serious accidents. 

In any event, we in the stone, sand and gravel industry are committed to doing 

our part in this regard, and we believe that we continue to make substantial 

progress because of our efforts. A number of factors have contributed to this success. 

The first is leadership. Since 2002, we have spearheaded an effort to enlist CEOs 

committed to safety and health. Our industry-wide Safety Pledge program is the vehicle for this. I am pleased that more than 70 percent of our operator facilities, 

which account for more than 90 percent of industry employees, are headed by a 

CEO who has personally signed the Safety Pledge. 

Safety Collaboration with Government 

We have a record of collaborating with government agencies, most notably MSHA, 

with which NSSGA signed an alliance agreement. This has given birth to a number 

of effective compliance assistance programs such as Safety Alerts derived from 

MSHA injury data. Furthermore, we collaborated with MSHA on the development 

of the ‘‘Safety Pro in a Box’’ program in which we culled excellent training resources 

from the Mine Academy and made them available free of charge to aggregates operators. 

Our industry’s CEOs have met several times with MSHA’s leadership to offer to 

work collaboratively to reduce injuries, illnesses and fatalities. In these meetings, 

we made a number of recommendations, including: 

• Focusing enforcement on areas of highest risk; 

• Improving communications between operators and inspectors to improve consistency in enforcement; 

• Addressing the behavior component on safety and health, not just conditions; 

• Ensuring that the metric for assessing MSHA’s success is focused on demonstrable safety accomplishment—rather than continual escalation of enforcement 

(which has certainly been the trend), and 

• Providing aggregates-specific training for inspectors so that safety challenges 

from another sector don’t inappropriately affect enforcement in the metal/non-metal 

sector. 

On the second point—concerning improved communications—we appreciate it 

when the agency properly and timely informs stakeholders of intended areas of enforcement concentration and actions advised for compliance. Two such examples are 

the Rules to Live By initiative, and planned enforcement ramp-up of the 56/57.5002 

airborne contaminants standard. 

At Assistant Secretary Main’s request, we have lent assistance on key initiatives. 

We supported the ‘‘Rules to Live By’’ fatality-prevention program. We also answered 

Mr. Main’s call to disseminate information about stepped-up enforcement of 56/ 

57.5002, the airborne contaminants standard, and widely circulated our industry’s 

Occupational Health Program for compliance assistance. 

In other instances, agency interaction with industry has been absent. A variety 

of enforcement initiatives were begun without notice and without stakeholder consultation. An example is truck scales. They are built by the manufacturers with rub 

rails, not guardrails. Suddenly, MSHA is enforcing a requirement for guardrails at 

virtually every scale in the country elevated more than 16 inches off the ground. 

As a result, many operators were caught by surprise and found themselves being 

cited for things that MSHA had always deemed compliant in the past. 
10 

Regulatory Burden 

Returning to MSHA, we do believe that the agency has become unduly reliant on 

trying to add regulations that, in our view, are not likely to make material contributions to enhancing safety and health, but rather will increase bureaucracy, administration and paperwork cost for companies. We cannot regulate our way to zero injuries. 

Furthermore, MSHA should not add regulations that only increase opportunities 

for duplicate citations with respect to ‘‘paperwork’’ compliance obligations that already exist. The agency is preparing to propose a rule likely to mandate the use 

of ‘‘Safety and Health Management Systems’’ (SHMS), on top of the standards mandated by the Mine Act. This one-size-fits-all approach to rulemaking may also 

produce a one-size-fits-all rule for the largest to the smallest operators for managing 

their operations. Yet, operators need flexibility to tailor their efforts at hazard and 

risk reduction and legal compliance to the specific size and complexity of their facilities. Unless done properly, this could significantly add compliance burden with little 

or no benefit to safety and health. Companies need to be able to focus on employee 

safety reminders and training in the field, not paperwork, and not more citations 

to be dealt with to no good safety or health advantage. 

Regulation by Policy 

Another concern is the issue of fair notice with respect to MSHA enforcement initiatives. The fact is that many MSHA requirements are coming at us without the 

type of rulemaking we think is required. As indicated above, MSHA has increasingly 

adopted novel enforcement policies without giving the industry advance warning or 

advice. The operator only learns of the changed interpretation once the operator is 

issued a citation by an inspector, often an inspector who found no fault with the 

identical condition previously. 

Earlier, I mentioned the example of guardrails for truck scales (which involve no 

small expense incidentally for questionable safety advantage, if any). Another notable example has to do with issues of fall protection and safe access for mobile equipment. Operators purchase large haul trucks, for example, that are fully fitted out 

with ladders and other means of access by the manufacturers. However, MSHA is 

now saying that the equipment as manufactured is not safe and must be retrofitted 

by the operator. 

No other federal law requires such changes to the equipment when it is used in 

any other industry as far as we know. In mining, many operators have found themselves receiving citations from MSHA requiring them to retrofit their equipment 

even though they have had no prior notice, and even though it is perfectly lawful 

for the equipment manufacturers to sell the equipment configured just as they manufacture it without the features demanded by MSHA. Needless to say, not only have 

mine operators not had fair notice, they are caught completely in the middle on 

these types of issues. Changes in requirements should come only through notice and 

comment rulemaking, not unilateral policy changes or ‘‘guidance’’ by MSHA. 

Enforcement Issues 

Of increasing frustration to NSSGA members is what the aggregates industry believes is inconsistent and unpredictable enforcement. Sometimes it appears that we 

must pay a heavy price for speaking up and seeking fairness. MSHA is training inspectors and then auditing them in the field, but the result seems to be heavier, 

not fairer, enforcement. 

The problem is further complicated. With MSHA’s problems in cross-training inspectors in the various sectors of its jurisdiction (pointed out in dozens of recently 

issued Accountability Office audit reports from 2008-10), the agency recently decided 

to increase reliance on accountability teams to double-check inspector performance. 

This, too, was often followed by harsher enforcement. 

It seems clear to us that focus on ‘‘accountability in enforcement’’ has resulted in 

not more balanced enforcement, but rather increased numbers and severity of citations written by MSHA for fear that an inspector might be found to have missed 

opportunities for alleging violations (for example, if too few citations had been 

issued at the initial inspection). This comes in the form of follow-up inspections by 

another group of inspectors, which might include the original inspector, area supervisor and someone from district office, or from another district. Again, I must stress 

that, while all this is going on, our industry quietly and steadily proceeds on its own 

to become safer and safer. A review of data shows that while injury rates continue 

to fall, there has been a substantial increase in citations labeled—Significant & Substantial.’ It is only sensible to ask, why is this happening and how can it be fair? 

The agency should improve its means of training inspectors on both recognition 

of hazards, and on the burdens imposed by inappropriate enforcement, including 
11 

undue escalation in penalty assessments. After all, every elevated finding in a citation by an inspector converts to substantial dollar increases when penalties are proposed. For example, a single change in finding in a single citation could raise a 

$2,000 penalty for that citation to $10,000. 

Penalty assessments for stone, sand and gravel operators are up more than double 

the levels from the period before the 2006 Miner Act; yet, in this time, our injury 

rates have continued to fall. The rates are falling because of good safety management, not civil penalties. This dichotomy—of more citations and more expensive enforcement despite excellent industry accomplishments—risks undercutting the cause 

for safety and health as well as the perception of MSHA as a respected government 

entity working for the common good. 

Ways in Which MSHA Enforcement Can Get it Wrong 

1. MSHA inspectors cite conditions that are not hazardous. 

2. MSHA inspectors cite violations, but over-write the gravity, e.g., an inspector 

asserting that a ladder in need of minor repair is ‘‘highly likely’’ to cause injury 

versus the more practical: ‘‘unlikely,’’ or ‘‘reasonably likely.’’ 

3. MSHA inspectors cite violations, but over-write the negligence, e.g., a guard fell 

off a piece of equipment earlier in the day, and it is said to constitute ‘‘high’’ negligence versus ‘‘low.’’ 

4. MSHA inspectors cite violations, but over-write by labeling them ‘‘significant 

& substantial’’ (that is, the violation could reasonably be expected to cause an injury 

of a reasonably serious nature). One such citation was issued for a piece of trash 

that was blown by the wind to within 25 feet of an electrical installation. 

5. MSHA inspectors demand abatement that is either unnecessary or inappropriate, which leads to increased costs that are in no way justified and typically cannot be recouped if the enforcement turns out to be wrong. For example, at one operator’s plant, an inspector demanded that—due to an alleged fire hazard—expensive 

changes be made to a surge tunnel because of an ostensible fear of belt slippage. 

The citation was ultimately vacated, but not before the company was forced to 

squander $10, 000 in unnecessary abatements. 

6. MSHA inspectors issue threats about future enforcement if the operator does 

not divulge every single bit of information an inspector is seeking, including sometimes information from company records that are not part of MSHA compliance. 

7. MSHA is very often unwilling to correct an inappropriate citation until just before a hearing so that the agency does not incur a judicial loss concerning a standard deemed important for the agency’s future enforcement. 

8. There is often a sense of threat from inspectors when they refuse discussion. 

Ideas for Improving MSHA Regulation of Safety & Health in the Future 

We believe that there could be a more enlightened approach to encouraging and 

assisting mine operators in their efforts to secure worker safety other than issuance 

of citations for each apparent discrepancy, no matter how unlikely that it would 

ever contribute to a hazard. We contend that the agency should be free to focus its 

enforcement resources on areas and operations posing the greatest risk. We believe 

that consideration should be given to the issue of whether mandatory minimum inspections twice a year for surface facilities or four times a year for underground are 

indispensible. 

After all: only three years ago did the agency for the first time complete 100 percent of the mandated two inspections of surface, and four inspections of underground facilities mentioned in the Act. This was well after our industry had begun 

its decade-long string of annual reductions in injury rates. So, for some, the two inspections for surface and four for underground operations may be appropriate, but 

for others it may not be the best use of resources. 

I think this is especially the case given the severe budgetary constraints on the 

Federal government. 

Moreover, if MSHA’s resources are limited or reduced, we prefer a reduction in 

the number of inspections rather than reductions in compliance assistance, training 

and other areas that are helping industry improve safety. 

We believe there is often an excessive concentration of enforcement on the mine 

operator with no emphasis on contributions to violations from other parties, including individual employees when they act contrary to training and instructions, and 

independent contractors that are realistically outside the mine operator’s control. 

We believe that MSHA could take stronger actions to help induce employee and contractor cooperation with mine operators on achievement of safety and compliance. 

For the future as well as now, we support further investment in compliance assistance by MSHA. For instance, we support the continued utilization of the very 
12 

successful Small Mine Office, as it has been structured. We also encourage new cooperative initiatives. 

Behavior-based safety is a widely accepted concept instructing that all who are 

on a worksite hold some degree of responsibility for their own safety and health and 

the safety and health of others on the property. In fact, there is no way our industry 

would have achieved the reductions in injuries in the past ten years had it not been 

for company-wide programs aimed at safer work. Any expert in workplace health 

and safety would support this. And, our laws and enforcement should recognize this, 

as well. 

NSSGA would be pleased to play a central role in working to achieve the most 

enlightened regulations and enforcement possible under our existing mine safety 

and health law. There is precedent for this. In 1997, NSSGA member companies 

joined forces with miners’ representatives and MSHA to develop a key training regulation so that all stone, sand and gravel workers would obtain critical training. 

This resulted in training mandates much more appropriate to the stone, sand and 

gravel industry. In the same manner, we would be pleased to work with MSHA and 

representatives of miners to update approaches to regulation and enforcement of 

mine safety and health generally. 

Furthermore, a specific point: we believe that modernization would be achieved 

if MSHA would establish a Pattern of Compliance Program, which would give some 

form of credit to operators for outstanding adherence to MSHA standards and keeping low rates of injuries. It is anticipated that this would help the agency streamline 

and make more efficient the inspection process, thus freeing resources to be targeted 

at areas of greatest risk. Ideas for this include: 

• Providing credit for excellent compliance so that future citation assessments received can see financial costs mitigated (for example, increase the good-faith credit 

from 10 percent back up to 30 percent for timely abatement); 

• Allowing inspectors to issue a notice in lieu of citation for a de minimis hazard, 

and/or elimination of citation if immediate abatement is accomplished by the operator; 

• Developing guidelines for inspectors directing that they focus their inspection 

hours on the most troubled operations (for example, inspectors could only spend a 

limited amount of time inspecting operations with excellent compliance record 

versus camping out at a good operation for an unduly long time); 

• And if MSHA is interested in Safety and Health Management Systems, as reflected in the impending June rulemaking proposal on this matter, then perhaps 

MSHA could at least provide an incentive to operators, especially small ones, by 

granting credits against other enforcement actions, such as reduced civil penalties, 

in the manner described above for abatement credits. 

Conclusion 

NSSGA appreciates this opportunity to present new ideas for enhancing worker 

health and safety. We respectfully urge that more be done in the area of assisting 

operators in compliance, allowing optimal resources to be focused on the areas of 

greatest risk. Thank you. 

Chairman WALBERG. Thank you. 

Now, Mr. Ellis? 

STATEMENT OF MARK G. ELLIS, PRESIDENT, INDUSTRIAL 

MINERALS ASSOCIATION—NORTH AMERICA 

Mr. ELLIS. Chairman Walberg, Ranking Member Woolsey and 

members of the subcommittee—— 

Chairman WALBERG. Turn your mike on, please. 

Mr. ELLIS. Thank you. Chairman Walberg, Ranking Member 

Woolsey, members of the subcommittee, I am Mark Ellis, president 

of the Industrial Minerals Association, North America, also known 

as IMA-NA. IMA-NA represents companies that extract and process a vital and beneficial group of raw materials known as industrial minerals. Industrial minerals are the fee stocks for many of 

the products we take for granted such as glass, ceramics, plastics, 

paper and building products. It is the unique chemical and physical 

properties imparted by these minerals which make them valuable. 
13 

Mr. Chairman, thank you for inviting the industrial minerals industry to testify today. Our sector often is forgotten in the attention paid to other more familiar mined products. In many ways, the 

low profile of our industry is a testament to our ability to extract 

and process minerals using safe and responsible methods. 

My message to you today is three-fold. First, the safety of America’s miners is the paramount responsibility of all who work in the 

mining industry. Second, I ask that we all spend some time today 

rethinking what initiatives will modernize mine safety. Finally, 

please recognize that not all mining is the same. 

The industrial minerals industry is proud of our contributions to 

reducing both the number and, more importantly, the rate of mining-related deaths, injuries and illnesses. But let us not lose sight 

of the fact that the measure of our success is the safety and health 

of the mining workforce. There is absolutely nothing more important than sending miners home safe and healthy at the end of each 

day. 

Mr. Chairman, if I were to ask you what the leading cause of injury is in the industrial minerals industry, what would you guess? 

Explosions, lung disease, falling rocks, or mobile equipment? In 

fact, ergonomic or musculoskeletal injuries represent 87% of the injuries in our industry. I can’t say that the industrial minerals industry has eliminated all non-ergonomic hazards in the workplace, 

just as I can’t say we have eliminated all unsafe behaviors. But our 

injury statistics are telling us something, and we are responding to 

that message. We want to address what is injuring our miners. So 

what have we done? 

We have partnered with the National Institute for Occupational 

Safety and Health, supported its research, and provided a variety 

of products to address ergonomic hazards in the mining industry. 

Our companies are responding. They are evaluating their workplaces for ergonomic hazards. They are training their mine personnel to eliminate unsafe behaviors. And they are installing controls. And they are preventing injuries, all without a single legislative or regulatory action. 

Yet another example of proactivity are member companies that 

mine and process 99 percent pure crystal and silica have developed 

a voluntary occupational health program that goes far beyond regulatory requirements, represents thousands of hours of work by 

dedicated professionals and, no doubt, is the primary cause for the 

virtual elimination of silicosis, the world’s oldest occupational disease, from their workplaces. 

The companies do this, not because the law requires it, but because it is the right thing to do. This leads me to my second point, 

Mr. Chairman. 

It is time to rethink the types of initiatives that will modernize 

mine safety. We acknowledge that there have been recent preventable tragedies in the mining industry that only stand to highlight 

the need for continued vigilance. However, we believe that the mining industry is not in need of legislative reform and that the Mine 

Safety and Health Administration already has the statutory and 

regulatory authority it needs to compel compliance with the law by 

recalcitrant mine operators. 
14 

This has been demonstrated recently by MSHA’s utilization of its 

injunctive relief authority and its decision to finally begin placing 

mines on a pattern of violations status. MSHA should focus its resources and the power it already possesses where they are needed 

most. 

IMA-NA urges Congress and the Department of Labor to leverage the existing safety programs currently being utilized by the 

mining industry. We believe that America’s miners would benefit 

greatly by implementing a program based on public-private partnerships, for instance, a program similar to OSHA’s Voluntary Protection Program, and that doing so would be a more efficient use 

of MSHA’s resources. 

It is important to note that not all mining is the same. The nonmetallic minerals sector of the mining industry simply does not 

present the same degree of hazard as other sectors. No fatality is 

acceptable, but we note that between 2003 and 2009, our fatality 

rate averaged nearly 80% less than the sector with the highest 

rate. We also should be noted that the nonmetal sector in the past 

has achieved the universally pursued goal of zero fatalities, most 

recently in 2006. 

In conclusion, modernizing mine safety is an ongoing activity, 

and the best results are achieved through collaboration between industry and government. Regulatory compliance and reasonable enforcement still is necessary. However, the measure of our success 

is not the number or the severity of the enforcement actions taken 

against mine operators, but the safety and health of the mining 

workforce. We also need to be prepared to recognize and acknowledge superior mine safety performance as readily as we condemn 

unacceptable performance. 

Thank you. 

[The statement of Mr. Ellis follows:] 

Prepared Statement of Mark G. Ellis, President, 

Industrial Minerals Association—North America 

Chairman Walberg, Ranking Member Woolsey, and Members of the Subcommittee: I am Mark Ellis, president of the Industrial Minerals Association— 

North America, also known as IMA-NA. I also serve as president of the National 

Industrial Sand Association (NISA) and executive director of the International Diatomite Producers Association (IDPA), two minerals trade associations that also are 

members of IMA-NA. I have more than 30 years experience addressing mine safety 

and health matters. 

IMA-NA represents companies that extract and process a vital and beneficial 

group of raw materials known as industrial minerals. Industrial minerals are the 

feed stocks for many of the products we take for granted, such as glass, ceramics, 

plastics, paper, and building products. It is the unique chemical and physical properties imparted by these minerals that make them valuable. Minerals represented 

by IMA-NA include ball clay, barite, bentonite, borates, calcium carbonate, diatomite, feldspar, industrial sand, kaolin, magnesia, mica, soda ash, talc, wollastonite 

and a variety of other minerals. IMA-NA mineral sections typically represent 75- 

100% of the North American production of these industrial minerals. 

Mr. Chairman, thank you for inviting the industrial minerals industry to testify 

today. Our sector often is forgotten in the attention paid to other, more familiar, 

mined products. In many ways, the low-profile of our industry is a testament to our 

ability to extract and process minerals using safe and responsible methods. 

My message to you today is fourfold. First, the safety of America’s miners is the 

paramount responsibility of all who work in the mining industry. Second, I ask that 

we all spend some time today rethinking what initiatives will modernize mine safety. Third, embracing technological innovation will modernize mine safety. Finally, 

please recognize that not all mining is the same. 
15 

Safety Is The Paramount Responsibility 

The industrial minerals industry is proud of our contributions to reducing both 

the number and, more importantly, the rate of mining-related deaths, injuries, and 

illnesses. But let us not lose sight of the fact that the measure of our success is the 

safety and health of the mining workforce. There is absolutely nothing more important than sending miners home safe and healthy at the end of each day. 

Mining presents risks unique to minerals extraction and processing that must be 

recognized and taken seriously, and anyone who does not affirmatively and 

proactively minimize these risks has no business operating mines. But the people 

you encounter in the mining industry generally are good, ethical individuals, who 

are dedicated to the protection of those who work in our mines and processing facilities. In fact, we commend all those who seek to drive fatality and injury rates to 

zero, including the U.S. Congress, employees at the Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health 

(NIOSH), other government officials, labor unions, mining communities and families, mine management, health and safety professionals, the media, and last but not 

least the miners themselves. 

In the 33+ years since passage of the Federal Mine Safety and Health Act of 1977, 

the mining industry (and here I am referring collectively to the mining industry as 

a whole) has made significant gains in reducing both the number, and more importantly, the rate of mining-related deaths, injuries and illnesses. The industrial minerals industry is proud of our contributions to this effort and the successes together 

we have achieved. But let us not lose sight of the fact that the measure of our success is not the number or severity of the enforcement actions taken against mine 

operators, but the safety and health of the mining workforce. 

Mr. Chairman, if I were to ask you what the leading cause of injury is in the industrial minerals industry, what would be your guess? Explosions, lung disease, falling rocks, or mobile equipment accidents? In fact, ergonomic or musculoskeletal injuries from slips, lifting, repetitive movement and the like represent 87% of the injuries in our industry. 

A basic tenet of the safety profession is to first identify the hazard. I can’t say 

that the industrial minerals industry has eliminated all non-ergonomic hazards in 

the workplace, just as I can’t say we’ve eliminated all unsafe behaviors, but our injury statistics are telling us something and we are responding to that message. We 

want to address what is injuring our miners. So what have we done? 

IMA-NA formed and ergonomics task force in 2005. We partnered with the National Institute for Occupational Safety and Health (NIOSH), supported its research, 

and produced a variety of products to address ergonomic hazards in the mining industry. Our companies are responding, they are evaluating their workplaces for 

ergonomic hazards, they are training mine personnel to eliminate unsafe behaviors, 

they are installing controls, and they are preventing injuries; all without a single 

legislative or regulatory action. 

Our industry has not been timid in its embrace of public-private partnerships. We 

have formed another partnership with NIOSH and MSHA to address dust control 

because minimizing the hazards associated with exposure to respirable dust is a 

major priority for our companies. This particular effort will culminate shortly in the 

publication by NIOSH of a definitive resource document filled with information to 

help the minerals industry to manage dust control intelligently. 

And not insignificantly, we also have maintained an Alliance with MSHA that has 

been enormously successful in achieving substantive results ‘‘beyond compliance’’ 

and which has improved the already outstanding safety programs of our membership. A few examples of the successes achieved through this alliance merit attention. 

Each year we identify and honor best-in-class companies in the industrial minerals 

industry for their safety performance. This includes not only companies with the 

best overall safety performance, but individual mining operations that operate without injuries in excess of 200,000 continuous work hours. We also generate and provide an analysis of safety performance at each company covering each of their individual operations. The goal here is to ensure that senior company executives know 

not only how their company and its constituent units are performing on the safety 

front, but how they compare to companies of similar size. Finally, I’d like to highlight that IMA-NA and MSHA jointly developed ‘‘A Practical Guide to an Occupational Health Program for Respirable Crystalline Silica.’’ The model program is 

based largely on material developed by MSHA and the National Industrial Sand Association. The NISA voluntary occupational health program goes far beyond regulatory requirements, represents thousands of hours of work by dedicated professionals, and no doubt is the primary cause for the virtual elimination of silicosis (the 

world’s oldest occupational disease) from their workplaces. The companies did this, 

not because the law requires it, but because it is the right thing to do. IMA-NA 
16 

thanks Assistant Secretary Main and his dedicated colleagues at MSHA for their 

continuing contributions to this Alliance. 

Rethinking What Initiatives Will Modernize Mine Safety 

This leads me to my second point. Mr. Chairman, it is time to rethink what types 

of initiatives will modernize mine safety. We acknowledge that there have been recent preventable tragedies in the mining industry that only stand to highlight the 

need for continued vigilance. However, the overall safety performance of the mining 

industry may be a surprise to some. For instance between 2002 and 2009, the fatality rate decreased by 49%, and the total injury rate decreased by 32%. Further, the 

mining industry compares quite favorably to other business and industrial sectors. 

In 2009, the total injury rate was 3.2 for the mining industry as a whole (based on 

the number of injuries per 200,000 hours worked). This rate is half that of many 

other business and industrial sectors. In fact, the mining industry’s collective injury 

rates are below the 3.9 average for business and industry as a whole. 

We believe that the mining industry is not in need of legislative reform, and that 

MSHA already has the statutory and regulatory authority it needs to compel compliance with the law by recalcitrant mine operators. This has been demonstrated recently by MSHA’s utilization of its injunctive relief authority and its decision finally 

to begin placing mines on a ‘‘pattern of violations’’ status. 

Today’s approach to safety relies on such concepts as ‘‘behavior based safety.’’ 

Threats and intimidation have been proven to be ineffective in getting ‘‘buy-in’’ on 

safety. And ‘‘buy-in’’ is what is needed because what really matters is how people 

act when no one is watching. 

The mining industry has made considerable advancements in the development of 

safe processes and controls, and any efforts to improve mine safety should recognize 

the level of sophistication in modern mine safety management. 

Mr. Chairman, IMA-NA believes that the best solutions to protect the lives of 

miners emerge from joint public-private partnerships as opposed to over-reliance on 

‘‘command-and-control’’ regulatory schemes. It is human nature to take greater ownership in something that you helped to create, and collaborative programs are destined to ‘‘get-things-right’’ from the outset as everyone has played a role in their creation. 

MSHA should focus its resources and the powers it already possesses where they 

are needed most. 

As members of this subcommittee likely are aware, MSHA’s statutory mandate 

covers a mining industry workforce of about 350,000 miners working at fewer than 

15,000 mining operations. By contrast, OSHA’s statutory mandate covers the construction, agriculture and maritime sectors, and general industry, with in excess of 

130 million employees working at millions of workplaces. And both MSHA and 

OSHA seek to fulfill their statutory mandates with roughly the same number of federal employees. One reason it takes so many MSHA inspectors to fulfill the agency’s 

statutory mandate is that the Mine Act requires each underground mine to be inspected in its entirety four times per year and each surface mine to be inspected 

in its entirety two times per year. At some larger mines, that MSHA inspector presence can become almost a continuing presence. And these periodic inspections are 

mandated regardless of whether the mine demonstrates an exemplary safety performance or an unacceptable one. While these mandatory federal inspections without doubt have contributed in some measure to the steady improvement in mine 

safety performance, strict adherence to the mandate has prevented MSHA from reallocating scarce inspector resources where they are needed most. 

IMA-NA urges Congress and the Department of Labor to leverage the existing 

safety programs currently being utilized by the mining industry. We believe that 

America’s miners would benefit greatly by implementing a program based on publicprivate partnerships, for instance a program similar to OSHA’s Voluntary Protection 

Program (VPP), and that doing so would be a more efficient use of MSHA’s resources. Since OSHA launched the VPP in 1982, more than 2,000 worksites have 

been approved for VPP status. VPP sites must demonstrate an effective safety and 

health program and operations must meet performance-based criteria for safety and 

health. Because this program is intended to promote a cooperative approach to 

workplace safety, the support of employees is a prerequisite for acceptance into the 

program. Worksites accepted into VPP are exempt from programmed inspections, 

but are subject to inspections generated by complaints, accidents, and other significant events. The program has generated impressive results, with the average VPP 

worksite having injury/illness rates that are approximately 50% lower than industry 

averages. 

Instituting programs such as this will allow MSHA to hold out the success of VPP 

participants to the rest of industry as examples of the benefits that can be derived 
17 

from successful safety and health programs. Recognizing resource limitations at 

MSHA, a VPP-type program would be a fiscally responsible way to help promote 

safety and health success stories, while at the same time improving efficiency by 

freeing the agency to focus its scarce inspection resources on those companies and 

operations that truly merit attention and need assistance to help strengthen their 

programs. 

Embracing Technological Innovation Will Modernize Mine Safety 

Mr. Chairman, I would be remiss if I did not at least touch on the subject of technological innovation when discussing modernizing mine safety. This committee is to 

be commended for the technology-forcing provisions included in the MINER Act. 

While some intractable challenges do not lend themselves to technical solutions, solutions that work or offer promise should be embraced. 

I have one example that utilizes the controlled use of compressed air to clean 

‘‘take home’’ dust from a miner’s work clothes. The technology was developed in collaboration between an IMA-NA member company, that company’s workforce, and 

NIOSH. In essence, the technology involves a clothes-cleaning booth that whisks the 

dust from the clothing and safely discharges it from the work environment. It has 

potential application at both MSHA- and OSHA-regulated work sites, but both agencies currently have regulations on their books addressing the use of compressed air 

that restrict the introduction of this technology. Both agencies have expressed interest in the technology informally, with MSHA approving its use in a limited number 

of instances under its petition for modification procedures. However, a rulemaking 

of general application is the preferred method to make this innovative technology 

more readily available, thereby reducing workers’ exposure to potentially harmful 

respirable dust. 

Another example of cutting-edge technology involves the apparatus I have in front 

of me on the witness table. The so-called ‘‘Helmet-CAM’’ uses a hardhat-mounted 

video camera to capture a video of tasks performed by a mobile worker throughout 

the workday with the worker’s respirable dust exposure also displayed in real time 

on the video to better identify areas or tasks of high exposure. Combining these two 

different forms of information together allows for the identification of key processes 

and/or tasks that significantly impact a worker’s personal dust exposure. Once areas 

of high respirable dust exposure are determined, work practices or control technology can be developed to address the potential overexposure. The work practices 

or control technology then can be re-evaluated to determine its effectiveness in reducing the worker’s dust exposure. This technology also is the result of a collaborative effort between an IMA-NA member company, that company’s workforce, and 

NIOSH. 

Not All Mining Is The Same 

It is important to note that not all mining is the same. The nonmetallic minerals 

sector of the mining industry simply does not present the same degree of hazard 

as other sectors. No fatality is acceptable, but we note that between 2003 and 2009 

our fatality rate averaged nearly 80% less than the sector with the highest rate. It 

also should be noted that the nonmetal sector in the past has achieved the universally pursued goal of zero fatalities, most recently in 2006. To maximize advances 

toward our common objective of safe and healthy miners, the focus of any reform, 

legislative or otherwise, must focus on what is needed most and where the greatest 

benefit can be realized. The same easily can be said of enforcement and compliance 

assistance. 

Conclusion 

Modernizing mine safety is an ongoing activity and the best results are achieved 

through collaboration between industry and government. Regulatory compliance and 

reasonable enforcement still are necessary. However, the measure of our success is 

not the number or severity of the enforcement actions taken against mine operators, 

but the safety and health of the mining workforce. We also need to be prepared to 

recognize and acknowledge superior mine safety performance as readily as we condemn unacceptable performance. 
18 
19 

Chairman WALBERG. Thank you, Mr. Ellis. 

Mr. Roberts, welcome. 

STATEMENT OF CECIL EDWARD ROBERTS, JR., PRESIDENT, 

UNITED MINE WORKERS OF AMERICA (UMWA) 

Mr. ROBERTS. Well, thank you for having us here today. I appreciate this opportunity to speak on behalf of the coal miners that we 

represent and, quite frankly, many of the coal miners and other 

miners across this country we don’t represent. 

I am also here today not only as the president of United Mine 

Workers, but I am also the chairman of the Health and Safety 

Committee for the AFL-CIO. And I will be speaking, and in some 

of my prepared remarks address nonmetal mining as well as coal 

mining. 

I think for 100 years, we had no laws in this country, for a lack 

of a better way of saying it. It wasn’t until 1969 that Congress 

acted and passed laws with enforcement actions by the govern-
20 

ment. And that was in 1969 after a terrible tragedy up at the 

Farmington Number Nine mine in West Virginia. We still go there 

every year to honor those who perished, 19 of which are still entombed in that mine. 

The tragedy was of such horrific nature, all of the miners could 

not be recovered. The Congress saw fit at that time, and I think 

the nation demanded, that Congress act to protect the coal miners 

of this nation. And the question would be, well, does legislation 

protect coal miners. And I think that is a resounding yes. 

I think the statistics are very clear with respect to that. If you 

look at the 40 years prior to the passage of the 1969 Act, 32,000 

miners died in this nation’s mines, coal miners. Forty years after 

the passage of the act, less than 3,200. We averaged 800 fatalities 

a year prior to the passage of the 1969 Act. And we have obviously 

done so much better. 

We passed revisions to the 1969 Act in 1977 that brought in 

metal and nonmetal for the same kinds of protections that we afforded coal miners in 1969. And the results were exactly the same. 

We had a two-thirds reduction in the number of fatalities in metal 

and nonmetal. 

So it is almost impossible for anyone to argue that Congress acting has not helped protect coal miners and all miners in the United 

States of America and continues to do so every single day. We also 

know that we never recognized black lung, pneumoconiosis, as an 

occupational disease that was compensable in this nation until 

1969. And we also know that 70,000 coal miners have perished in 

the last 40 years from this terrible disease. 

So I think the statistics tell us that good laws passed by Congress, laws obeyed and laws enforced have saved many, many coal 

miners and other miners’ lives in this country. You can’t debate 

that. It is impossible for anyone to argue against that. That is the 

truth. 

Some will say, ‘‘Well, things are so much better now.’’ Laws are 

not written for the people who work hard and try to do the right 

thing. 

You are absolutely right, Mr. Chairman. I have said before the 

United States Senate as well as the United States House of Representatives that I believe that somewhere between 90 and 95 percent of the coal industry is trying very hard to do the right thing. 

And I would assume that that goes for all of the mining industry. 

But we have to understand there are people out there who are 

not doing the right thing. And we cannot ignore that fact. 

And just yesterday, after 29 miners died a year ago at Massey 

Energy’s Upper Big Branch mine—by the way, I lost friends in 

that. I lost neighbors in that. I have lost people I knew all my life, 

played ball with and/or their kids or their grandkids. So that hit 

home personally for some of us at the United Mine Workers of 

America. 

Just yesterday, at the Randolph mine, just yesterday, Mr. Chairman—this happened yesterday. MSHA did an impact inspection at 

Massey’s Randolph mine and issued 20 withdrawal orders, miners 

up into the face without controlling the dust, dust everywhere, two 

different pieces of equipment operating in the same location, all of 
21 

this in complete violation of the laws that this Congress has written to protect coal miners. 

If we do not have strong enforcement of the laws that Congress 

writes, Congress should not write laws because they are useless if 

they are not protecting the coal miners in this nation. And I applaud what MSHA has done with the impact inspections. 

The other thing we do—Mr. Chairman and members of the subcommittee, need to do a couple things. I think Congress should be 

given a lot of credit for what they did in 2006. The one thing that 

I can report to you today that if the Sago mine disaster had occurred yesterday, we would have had one fatality instead of 12 because of the actions that Congress took in 2006. 

You took the actions to say that shelters have to be in mines. At 

the time the 2006 legislation was being debated, many in the industry said, well, we can’t comply with this. It won’t work. It costs 

too much money. But I can tell you there is a shelter in every single coal mine in the United States or its equivalent. 

And one of the things that we did find from the Upper Big 

Branch explosion, the shelter that was in place there withstood the 

explosion. Water accumulated, and it did not destroy that shelter. 

And many of the people in the industry came here and said, well, 

you know what is going to happen. If you put these shelters in the 

mines, they are going to be destroyed in explosions. The miners 

won’t have any place to go. 

And unfortunately, the Upper Big Branch miners had no place 

to go. They were killed almost instantly. And if they had had the 

opportunity to live for 15 minutes, they could have saved their lives 

by making their way to one of these shelters. So I applaud the actions of Congress for the actions they have taken in 1969 and 1977, 

in 2006. And I look forward to following the action Congress takes 

in the future. Thank you. 

[The statement of Mr. Roberts follows:] 
22 
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25 
26 
27 
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29 

Chairman WALBERG. Thank you, Mr. Roberts. 

Mr. Bumbico, welcome. 

STATEMENT OF ANTHONY S. BUMBICO, VICE PRESIDENT, 

SAFETY, ARCH COAL, INC., TESTIFYING ON BEHALF OF THE 

NATIONAL MINING ASSOCIATION 

Mr. BUMBICO. Mr. Chairman, members of the subcommittee, 

thank you for the opportunity to testify. I am Tony Bumbico, vice 

president of safety for Arch Coal. I am appearing today on behalf 

of the National Mining Association and as a representative of Arch. 

Arch is our nation’s second largest coal company with operations 

in six states. We have 4,700 employees at our underground and 
30 

surface mines. In 2010, we mined over 160 million tons of coal 

while achieving the lowest injury rate among our nation’s diversified coal producers. While we are proud, we are not satisfied. Injuries still occur at our operations, and we won’t be satisfied until we 

reach zero injuries. 

I began my career in 1974 as an underground miner. I was a 

member of the United Mine Workers of America and later elected 

to a position on the union’s executive board. For the last 25 years, 

I have performed various management functions during which I 

have always been dedicated to promoting health and safety. 

During my career, the coal industry has made significant 

progress. But the industry can and must continue to improve its 

safety performance. In the time I have, I want to talk about the 

efforts underway at NMA to modernize mine safety and about the 

specific efforts underway at Arch. 

In 2007, NMA initiated an effort to identify barriers to safe performance and to disseminate best practice materials. This effort 

began with an examination of the industry’s safety performance. 

NMA has studied companies with exemplary safety performance 

and identified certain common elements. 

Effective safety processes tend to be performance-based, integrated into a comprehensive management system. They are supported by senior management and encourage employee involvement. In NMA’s estimation, these are the elements necessary to 

modernize health and safety in the U.S. mining industry. 

Leadership and culture are the characteristics that have guided 

Arch’s effort to modernize safety. These characteristics have had a 

positive impact on safety throughout the mining industry. At Arch, 

safety is a core value. Our goal is to reach the perfect zero. 

Historically, Arch’s safety performance has been solid. In 2010, 

for example, our total incident rate, which measures lost time and 

medical injuries, improved to 1.1. That represents a 76 percent improvement since 1998. We didn’t achieve this level of performance 

overnight. 

Our safety process, when I arrived at Arch in 2004, began with 

the requirement that each operation meet minimum corporate 

standards. These standards were set forth as safety principles incorporated in division safety plans adopted by each operation. 

In 2004, we implemented a continuous safety improvement process to focus on identifying and closing measurable gaps in safety 

performance. That same year, we also started conducting crossoperational safety audits where we have people from different operations evaluate the core safety processes at their sister mines. 

In 2006, not satisfied with our pace of improvement, we adopted 

behavior-based safety as the vehicle to drive our safety performance to the next level. Every Arch operation has implemented a 

BBS process using steering teams to support their improvement efforts. The steering teams develop a list of critical behaviors with 

the potential to contribute to injuries. These critical behaviors 

serve as the basis for a peer-to-peer safety observation process. 

In a nutshell, BBS is a no-name, no-blame process that moves 

beyond the use of injury trends to identify safety performance. BBS 

is about encouraging employees to avoid exposing themselves to 

risk and sharing information about the exposures they encounter. 
31 

It teaches miners about the concept of safety. Understanding the 

concept of safety improves the miners’ ability to recognizes risks, 

respond appropriately and helps to build an effective safety culture. 

It has been 5 years since we implemented BBS, and we are seeing positive trends. Out total incident rate has improved 57 percent. Exposures have been reduced by over 120,000 peer-to-peer 

safety observations. And over 3,100 specific barriers to safe performance have been identified and eliminated. 

BBS has helped our employees understand the concept of safety. 

But it is not the only tool available to modernize mine safety. We 

have come to recognize that modernizing mine safety requires leadership, culture, training and involvement, characteristics that don’t 

result from writing more safety rules or enforcing them more stringently. 

Mr. Chairman, in my written testimony I will also discuss applications of voluntary protection program to modernizing mine safety. But in the interest of time, I will defer on that issue. 

In closing, I think it is critical that we all recognize that to improve safety performance, we need to move beyond the model based 

strictly on enforcement. Enforcement is necessary, particularly 

with bad actors. But to truly modernize mine safety, we have to develop performance structures that engage all stakeholders in problem-solving manner. 

Thank you for the opportunity to testify. I will be happy to answer your questions. 

[The statement of Mr. Bumbico follows:] 

Prepared Statement of Anthony S. Bumbico, Vice President of Safety, 

Arch Coal, Inc., on behalf of the National Mining Association 

Mr. Chairman and members of the Subcommittee, thank you for the opportunity 

to testify. I am Tony Bumbico, Vice President of Safety for Arch Coal, Inc. (Arch). 

I am appearing today on behalf of the National Mining Association (NMA) and as 

a representative of Arch. 

Arch Coal is our nation’s second largest coal company with operations in six (6) 

states. We have 4700 employees at our underground and surface coal mines, preparation plants and ancillary facilities in Colorado, Kentucky, Utah, Virginia, West 

Virginia, and Wyoming. In 2010 the Arch Coal subsidiaries mined over 160 million 

tons of coal that was shipped to domestic power plants in 39 states for electric generation and to international customers on four continents. 

The coal produced by our subsidiaries represents 15% of domestic production and 

7% of the coal used for domestic energy generation. We are proud of the fact that 

our operations accomplished this while achieving the lowest reportable injury rates 

among our nation’s diversified coal producers. While we’re proud of this accomplishment, we are not satisfied. Injuries still occur at our operations. As a company we 

have more to accomplish and will not be satisfied until we reach our goal of zero 

injuries. 

I began my career in 1974 as an underground coal miner in West Virginia. I was 

a member of the United Mine Workers of America, and was later elected to a position on the International Union’s Executive Board, a position I held for six years. 

Following my tenure with the UMWA, I worked the next 25 years in various safety, 

human resources, and operations positions in the coal industry. While I’ve worn 

many different hats, I’ve always dedicated my career to promoting health and safety. During my career, the coal industry has made significant progress in this area. 

I’m a firm believer, however, that the industry can and must continue to improve 

its safety performance. 

Before talking about Arch’s specific efforts to modernize safety, I’d like to talk 

more broadly about the efforts to improve safety performance that are underway at 

the National Mining Association. 

In 2007, NMA initiated an effort to examine the barriers to improved safety performance and to disseminate best-practice materials across the industry. This effort 

began with an examination of the industry’s safety performance. While most people 
32 

would agree that notable progress has been made over the last two decades, the industry has not reached its goal of zero fatalities and injuries. Moreover, it appears 

that the reduction in fatalities has reached a plateau. 

Improving safety performance at our current pace is not acceptable. As a result, 

NMA has initiated an effort that will complement what’s been accomplished and 

challenge the industry to take a more aggressive path to modernize and improve 

safety performance. 

NMA has studied, and continues to study, the safety practices of companies and 

industries from around the world that have exemplary safety performance. Successful safety processes all have certain common elements. They are integrated into an 

effective management system, are supported by senior management; involve their 

employees in the safety process; are reinforced by the organization’s culture, and in 

return, support the culture. 

These elements are common to successful safety and health processes across all 

industries. In NMA’s estimation, these are the elements necessary to modernize 

health and safety in the U.S. mining industry. 

Exemplary safety performers view adherence with regulatory requirements as the 

starting point, not as the finish. They recognize the limitation of enforcement as a 

means to improve performance. While compliance with the law is necessary and important, there are more effective ways to improve safety performance. 

To be effective, a safety system should be specifically designed to meet the unique 

needs of an organization. The design must consider the organization’s culture, and 

its workforce. When designing a performance-based safety system it’s important to 

remember that ‘‘one size does not fit all.’’ 

In many respects overly proscriptive regulatory requirements can inhibit the ability of companies to respond proactively to health and safety issues. Often, the time 

spent dealing with bureaucratic requirements steals precious time that could be 

spent eliminating a barrier to safe performance. Enforcement is an important safety 

tool, but its ability to improve performance is limited. Quite simply, there are more 

effective ways to improve safety performance. 

One key thing we’ve come to realize is that risk-based safety and health management systems that involve employees are more likely to move safety performance 

to the next level. Experience shows that ‘‘safe behavior’’ doesn’t occur in a vacuum, 

it’s shaped by leadership and culture. These are characteristics that are taught and 

nurtured, not legislated. 

Arch Coal’s Safety Process 

Leadership and culture are the characteristics that have guided Arch’s efforts to 

modernize safety. We’ve had some success developing a strong safety culture by applying the concepts of leadership, employee involvement, and problem-solving to 

health and safety issues. 

At Arch, safety is a core value. It’s integral to who we are. Our goal is to reach 

the Perfect Zero and we think this goal is achievable. Historically, Arch’s safety performance has been solid. In 2010, our Total Incident Rate, which measures Lost 

Time and Medical Injuries improved to 1.10. That represents a 76% improvement 

since 1998. Over time, the Arch mines have performed well below the industry average. In fact, our five-year average is 72% better than the coal industry average. 

(Safety performance charts are attached.) 
33 

(Note: An incident rate is a means of normalizing injury rates so that different 

size organizations can be compared. It is calculated by multiplying the number of 

incidents times 200,000 hours and dividing that number by the hours worked by 

employees at that site. The 200,000 hours in the calculation represents the number 

of hours 100 people normally work in the course of a year). 

We didn’t achieve this level of performance overnight. Our safety process was constructed in layers. The building blocks were put in place over time. I’ll take a few 

minutes to discuss each of these components. They include: 

• Division Safety Plans 

• Cross Operational Audits 

• Safety Improvement Process 

• Behavioral Based Safety Process 

Division Safety Plans 

When I arrived at Arch seven years ago, they had a solid safety foundation in 

place. The center piece of their process was a requirement that each operation meet 

minimum corporate safety standards. These standards were set forth as safety principles. These principles were incorporated in Division Safety Plans adopted by each 

operation. Over time, our operations have built on that foundation. 

For example, each Arch operation must actively demonstrate a strong visible management commitment to safety; a working safety policy with a goal of Zero Injuries; 

and integrate their safety process into their organization. They must also establish 

line organization responsibility for safety; establish challenging safety goals and objectives; and require high standards of safety performance. 
34 

Each Arch operation must also employ supportive safety professionals; conduct 

comprehensive injury/incident investigations; and provide employees ongoing safety 

training. Other examples of our core principles include progressive motivation; effective two-way communication; and comprehensive safety audits. 

Safety Improvement Plans (SIP) 

In 2004, Arch implemented a continuous safety improvement process. This is a 

systems-based, goal-oriented process that follows an annual cycle. It focuses our operations on identifying and closing measurable gaps in safety performance. The SIP 

process focuses on measurable results. 

Every year, each Arch operation develops a Safety Improvement Plan (SIP). Our 

operations analyze key safety performance metrics and establish between three and 

five improvement targets. Each SIP identifies what types of improvement interventions they plan to implement to achieve their targets. Our corporate safety professionals visit with them at the beginning and mid-way through each year to discuss 

their strategies and progress. At the end of the year, we evaluate what they’ve accomplished and start the process all over again. 

Cross Operational Safety Audits 

We also started conducting cross operational safety audits in 2004. Our cross 

operational audits supplement the safety audit process already in place at each operation. The concept is really quite simple. We take people from Mines A, B, & C 

and go to Mine D to evaluate its safety process. We use the audit to evaluate the 

health of a mine’s Division Safety Plan; Safety Improvement Plan; and BehaviorBased Safety Process. We also use the audit to review their core safety processes. 

Our Cross Operational Audits are not intended to be ‘‘wall-to-wall’’ inspections. 

They are designed to obtain a ‘‘snapshot’’ of how the mine solves health and safety 

problems, and to evaluate what their employees know about health, safety, and injury prevention. 

Arch conducts four to five cross-operational safety audits per year. We attempt to 

emphasize constructive feedback. One of our primary objectives is to identify and 

share best practices. In addition, our Cross Operational Audit Process helps us to 

maintain our health and safety standards. It also serves as an employee development vehicle; and encourages employee involvement. Most importantly, it helps 

Arch visibly demonstrate its commitment to safety. 

Other Key Safety Processes 

I won’t go into as much detail, but I’ll mention a few other processes we’ve implemented to maintain our focus on continually improving safety performance, to address specific risks, and to build our safety culture. 

Arch holds an annual safety summit for key managers, safety professionals and 

hourly employees active in our safety process. This event has grown to include nearly 100 internal safety leaders. This is our annual opportunity to recognize safety accomplishments and establish new performance objectives. 

We also sponsor annual safety workshops to provide developmental opportunities 

for our safety professionals. In addition, we have designed and implemented specific 

health and safety processes to address performance issues related to contractor safety; emergency preparedness; crisis communications; and explosives safety. 

Behavior-Based Safety (BBS) 

The processes I’ve mentioned were all in place by 2006. They’d helped us improve, 

but we weren’t satisfied. We felt we were having too many injuries and that our 

safety performance had reached a plateau. In fact our Total Incident Rate increased 

from 1.80 in 2005 to 2.57 in 2006. 

As a company, we believed that one injury was one too many and we were confident we could improve. That’s why we decided to adopt a Behavior Based Safety 

(BBS) process. It’s the vehicle we chose to drive our safety performance to the next 

level. 

Since 2006, every Arch operation has implemented a BBS process. BBS is a safety 

improvement process that starts with analyzing the ‘‘safe’’ and ‘‘at-risk’’ behaviors 

involved in the daily tasks employees perform. Each Arch site has assigned a Management Sponsor, appointed a Facilitator, and established a Steering Team to support their BBS process. 

The Steering Team normally consists of hourly employees. It starts by developing 

a list of ‘‘critical behaviors’’ with the potential to contribute to safety related incidents. This list of ‘‘critical behaviors’’ serves as the basis for a peer-to-peer safety 

observation process. 

The Steering Team trains observers on how to use the critical behavior checklists 

to identify exposures that may lead to injuries. The observers provide their peers 

with feedback on whether behaviors are ‘‘safe’’ or ‘‘at-risk.’’ The data gathered dur-
35 

ing the observation process is entered into tracking software to help identify ‘‘atrisk’’ trends and barriers to safe performance. This trend information is used to 

solve safety problems, identify improvement opportunities, and remove barriers to 

safe performance. 

The BBS process implemented by Arch was designed by Behavioral Science Technology, Inc. (BST). While there are other BBS processes available, we chose BST because it was a systems-based improvement process that focused on the entire organization’s leadership and culture. 

Arch initiated the BBS process at our mines by conducting a comprehensive organizational assessment. The assessment analyzed key organizational dimensions that 

predict safety performance. The leadership team at each of our mines also participated in an evaluation and coaching process. Training was conducted to teach supervisors how to support the process, and employees were trained in data collection 

and problem-solving techniques. 

The Arch operations have effectively implemented BBS. Now our focus is on sustaining the processes. We’re attempting to do this by integrating BBS into our traditional safety process and our culture. We’re also taking every opportunity to demonstrate visible safety leadership. 

In a nutshell, BBS moves beyond the use of injury trends to measure safety performance and identify improvement opportunities. Injury trends are not predictive. 

They don’t necessarily reflect the risks employees are exposed to because people are 

often lucky. They take shortcuts and get away with it. This leads to complacency. 

Before you know it they assume they can take the shortcut and not get hurt because 

(as the refrain goes) ‘‘we’ve always done it that way before.’’ 

Instead of relying solely on injury trends as the primary safety indicator, BBS focuses on identifying and reducing ‘‘at risk behaviors’’ and reinforcing ‘‘safe behaviors.’’ The process helps to identify risk-related exposures and barriers to safe performance that can potentially cause injury. Basically, employees are encouraged to 

not take the chance of exposing themselves to risk, and to share information about 

the exposures they encounter. 

Is Arch’s BBS process working? We think so. It’s been five years since we started 

this process and we’re seeing positive trends in a number of key areas. 

• Our Total Incident Rate has improved 57% from 2.57 in 2006 to 1.10 in 2010. 

• Exposures have been reduced by 119,477 peer-to-peer safety observations. 

• Safe behaviors are being reinforced by our 2,714 trained observers. 

• Over 3,160 specific barriers to safe performance have been identified and eliminated. 

• Our safety culture has been strengthened by making contact with 151,498 employees during the observation process. 

• Our BBS Facilitators and Steering Team members have developed into a new 

core of safety leaders. 

Ultimately BBS has made our safety culture and process stronger. It has helped 

by involving more employees in the safety process; improved communication flow 

within our organization; and upgrading the problem-solving skills of our employees. 

Here’s what some of our facilitators said at a recent meeting about the BBS process: 

• The process involves the workforce and empowers them to be self-directed in 

improving safety. 

• The process holds employees accountable for their own safety performance. 

• BBS empowers people to change in a positive way. 

• BBS provides a format for structured problem-solving that can be applied to all 

areas, not just safety. 

The Concept of Safety 

Arch’s BBS process is working because it teaches miners about the ‘‘concept of 

safety.’’ Most major mine operators know the critical competencies miners need to 

reduce the risk of injury or illness. Miners need training in basic health and safety 

regulations, the technical skills they need to do their job, and emergency/escape preparedness skills. Most major mining companies address these competencies fairly 

well. 

In my opinion, the biggest challenge we face in the mining industry is helping 

miners to understand the ‘‘concept of safety’’ and integrate them into an effective 

safety culture. Effective safety performance requires two key things. You have to improve the ability of miners to recognize and respond appropriately to hazards; and 

you have to convince them your company is serious about safety. 

Understanding the concept of safety improves a miner’s ability to recognize risks 

and respond appropriately. This is made more complex because mines aren’t assembly lines. They are dynamic ever-changing environments with conditions and risks 
36 

that change rapidly. Miners have to be able to safely adapt to a changing environment. 

What this means is that—unlike a controlled environment—you can’t rely on rote 

learning techniques or prescriptive safety rules to ensure safe performance. That’s 

why writing more safety rules and enforcing them more stringently is not an effective way to improve safety performance in coal mines. 

You have to provide miners with higher level analytical and problem-solving 

skills. In terms of hazards, miners need to be capable of thinking at a conceptual 

level. They need to have the ability to recognize new exposures as conditions 

change. Safe miners are effective risk identifiers, decision-makers, and problem solvers. Involvement in BBS has helped our employees improve these skills. By focusing 

our employees on critical behaviors, BBS is increasing their understanding of the 

‘‘concept of safety.’’ 

I’d like to turn to baseball to illustrate this point. Ted Williams was one of the 

most prolific hitters in baseball. He once said that * * * 

‘‘A hitter just can’t go up there and swing. He’s got to think. Listen (he said) when 

I played I knew the parks, the mounds, the batter’s box, the backgrounds. I studied 

the pitcher. I knew what was going on at the plate. It used to kill me to strike out, 

but when I struck out I knew what got me and what I was going to do about it.’’ 

Ted Williams was an effective hitter because he understood the ‘‘concept’’ of hitting. He understood the mental, as well as the physical, aspects of his trade. Ted 

Williams understood the critical behaviors that contributed to his success on the 

baseball field. That’s why he was a master of his craft. 

BBS is helping our employees ‘‘master’’ the concept of safety. A master is one who 

has superior skill or knowledge. An individual or team with the knowledge and 

skills to solve problems and creatively eliminate barriers to safe performance. Regulations don’t develop masters. Masters are shaped by leadership, culture, training 

and involvement. 

Voluntary Protection Program 

We have found that performance-oriented, systems-based safety processes that involve employees help drive safety performance. Along this same line of thought, we 

believe safety performance would also be enhanced if MSHA adopted a program for 

mine safety modeled on the very successful Voluntary Protection Program (VPP) administered by the Occupational Safety and Health Administration (OSHA). The 

VPP, created in 1982, allows those employers who meet performance-based health 

and safety criteria to be removed from programmed inspection lists. OSHA will not 

issue citations for standards violations that are promptly corrected so long as the 

worksite continues to exceed the VPP standards. The VPP promotes a cooperative 

approach to workplace safety. Employee support and involvement is a prerequisite 

for acceptance into the VPP. 

It’s important to note that the VPP complements OSHA’s enforcement activity, it 

does not replace it. MSHA could tailor a program in the same manner. VPP allows 

OSHA to focus its inspection resources on higher-risk worksites and would permit 

MSHA to do the same. This will become an increasingly important consideration as 

OSHA and MSHA alike are compelled to render resource allocation decisions in a 

time of budgetary limitations. 

Once a worksite is accepted into the VPP program, it must prepare a self-evaluation annually to be submitted to OSHA along with injury and health rates. All compliance standards and worksites remain subject to OSHA inspections generated by 

complaints, accidents or other significant events. Because VPP participants develop 

and implement systems to prevent employee injuries and illnesses, the average VPP 

worksite has a lost workday incidence rate at least 50 percent below the average 

for its industry. 

Since its inception, the VPP has steadily expanded the number of worksites participating in the program. They are located in every state and cover more than one 

million employees. In addition, since 1992, states have started their own VPP programs. Today hundreds of worksites participate in State VPP programs. In 1997, 

recognition of the program’s success resulted in it being expanded to allow federal 

worksites to participate. 

To improve and modernize mine safety, we need to operate more effectively. To 

improve safety performance, we need to move beyond a model based strictly on enforcement. Enforcement is necessary, particularly with regard to ‘‘bad actors,’’ but 

to truly modernize mine safety we have to develop performance structures that engage all stakeholders in a problem-solving manner. 

Performance structures based on risk-based approaches that establish higher 

standards, engage employees, and encourage cooperation simply make sense. If 
37 

MSHA were to adopt a VPP-type process it would move the industry in that direction. 

Closing 

Mr. Chairman, thank you for the opportunity to testify. I would be happy to answer any questions. 

Chairman WALBERG. I thank each of you for your testimony. And 

now we will move to questions from the panel here. And I look forward to beginning. 

Mr. Griesemer, in your written testimony you cite examples of 

MSHA inspectors lacking consistency in their citation process. I 

personally heard many illustrations and examples of how an inspector will write a violation for something that another inspector 

said was acceptable only months prior. I also hear of inspections 

that result in high numbers of citations that go on to be found to 

have no merit. 

You suggest that this problem of inconsistency may stem from 

cross-training inspectors in various sectors of jurisdiction. Do you 

believe the inconsistencies found in this citation process result from 

inspectors inserting a great deal of subjectivity to the citation process rather than using objective standards? 

Mr. GRIESEMER. Mr. Chairman, I believe that there is an effort 

by MSHA to be consistent. But I believe there is a—let me give you 

a couple of examples. I just had a couple citations a week ago at 

our Open Pit plant in Joplin, Missouri. And I think they pretty 

much illustrate some of the issues that small operators like myself 

are dealing with. 

And one of these citations is justifiable. One of our stockpile 

truck drivers dismounted his machine after setting the parking 

brake, left the machine unattended for a couple of minutes and 

then came back. Under the rules to live by, we are now very focused on chocking wheels for heavy equipment like that. And what 

he did was not appropriate. 

But this is a shifting standard. I think we could say 10 years 

ago, that that may not have been a citation. But today, we are focused on power and haulage, which is responsible for, I think, last 

year, it was seven deaths and injuries. So we have to raise the bar. 

And I am in agreement with that. The problem is I went out to 

that plant in the fall and instructed our miners that this is an initiative. This is something we have to—we have to comply with. We 

supplied the wheel chocks. We supplied the training. But it is still 

one of those patterns, those patterns of behavior that have to be 

adjusted. 

That was a 7-year employee stockpile truck driver doing his job 

and making that decision as to whether he was going to be off that 

truck long enough to chock the wheels. This resulted in a citation 

that is a significant and substantial citation with possibility of a 

fatality being highly likely. 

An instance of what will be a contested violation is we were cited 

on a maintenance truck that was located at the plant. The backup 

alarm on it was not—could not be heard above the surrounding 

noise levels. This maintenance truck had a backup alarm, but the 

inspector decided it couldn’t—it wasn’t loud enough. 
38 

We took that back to the shop and determined that that backup 

alarm was above the 85 decibel levels that would require hearing 

protection. I don’t know where to go with that kind of a citation 

because everybody is correct in that instance. It couldn’t be heard 

above the ambient noise levels, but then you are going to require 

the operators to wear hearing protection. You are not going to hear 

the backup alarm. 

Chairman WALBERG. Cover against it? Yes. 

Mr. GRIESEMER. So these are specific examples. This happened 

on April 26th of this year. These are the things that the small operators are having to deal with and trying to comply with this type 

of enforcement, which we feel like is not necessarily appropriate for 

our type of operations. 

We would need more help. We would suggest that rather than 

spending the resources on more inspections and heavy-handed enforcement, that more assistance be given to small operators so that 

we can change the behavior of our employees when there is this 

kind of raising of the bar of what is expected as far as safe behavior. 

Chairman WALBERG. I appreciate that. 

Mr. Ellis, in your written testimony, you discuss use of technology, I think, that is laying in front of you here. Maybe you could 

describe that and describe why that isn’t receiving wide usage. 

Mr. ELLIS. I would be pleased to, Mr. Chairman. 

Chairman WALBERG. And you have a short period of time here, 

but do the best you can. 

Mr. ELLIS. Understood. This device was developed in concert between one of our member companies, their workforce and the National Institute for Occupational Safety and Health. These are producers of crystalline silica, which is a potential cause of silicosis, 

a deadly or disabling lung disease. 

What this device does is it combines two different technologies 

and merges them together. There is a video camera that is mounted to that hard hat. And the wearer of the hard hat then can show 

everything he is looking at or working on. 

Also involved in here is a sampling device that extracts respirable dust of a certain size, 10 micrometers or less. And that is 

fed into a particle counter, which then measures what that miner’s 

exposure is. 

And so, as this person is wearing this device, eventually the two 

technologies are merged that produce a video in real-time that 

shows what the miner is doing as well as what his respirable dust 

exposure is. And it is particularly well-suited for people that do a 

variety of tasks around a mine, like somebody involved in maintenance where they are checking here and then they are moving off 

to another location. We can identify where high exposures are and 

then look at trying to modify either work practices or institute control technologies to control those exposures. 

Chairman WALBERG. Okay. Well, I wish I had more time to question, but I have got to abide by my own rules, at least to a point 

here. 

So I will turn the questioning over now to the gentlelady from 

California, Ranking Member Woolsey. 
39 

Ms. WOOLSEY. Thank you, Mr. Chairman. We can go around 

again, you know. 

Mr. Roberts laid it out. Safety laws and regulations have made 

a difference. And workforces are safer because of OSHA and 

MSHA, period. 

Mr. Bumbico, you supported it in your testimony. You said virtually the same thing. And I really respect that. 

So the question is how do we look at where we were 40 years 

ago, where do we need to be now. And what does modernizing 

mean? Because we are not in the 21st century. Ergonomics, who 

even knew the word 40 years ago when we started with this whole 

thing? So we have a lot of work to do. 

And it is very clear that employers—let us assume every employer here and most employers do the right thing. So the question 

is what are we going to do to protect the workers at the work sites 

where there are what we call bad actors that repeat and repeat 

and continue to do the same things over and over. 

Because you see, when we have voluntary compliance, voluntary 

safety, then the companies that play by the rules voluntarily spend 

more money to take care of their workers. It is not a level playing 

field then for the competition. The guys who don’t do it, everything 

is cheaper for them. So that is not right for you, either. So the 

question is what do we do. 

And so, I am going to ask you first, Cecil. What is your response 

to the industry arguments that counting citations instead of final 

orders unfairly deprives them of due process? 

Mr. ROBERTS. I think that speaks directly to the Pattern of Violations. If you go back to 1989, the UMWA was concerned about this. 

And I think there is testimony on record here that we suggested 

that if you only use final orders, which means that this entire process has taken place on appeals—and we know there are 19,000 

cases backed up as we speak. So let us think about that for a moment. 

And I hate to continue using Upper Big Branch as an example, 

but the violations that Upper Big Branch had on appeal, some of 

which are setting at the Review Commision now, and they had not 

been finally adjudicated and they may not have been for another 

year and assume that the mine had not had the terrible tragedy 

that it did. But we would still be trying to adjudicate some of those 

citations. And the very first thing that most in the public and most 

in Congress said immediately upon the explosion was, why didn’t 

the government close down this operation. 

The way the system is working right now is that, if you can’t get 

under a Pattern of Violations until the final order is issued, you 

would have had a problem in 2008. The final orders might have 

been adjudicated in 2010. You may have corrected the problem by 

2010, but people were in jeopardy in 2008. The system simply isn’t 

working. 

Ms. WOOLSEY. They died. 

Mr. ROBERTS. And I think we have to decide do we want to protect the nation’s coal miners, or do we want to have an opportunity 

for the appeal process and fairness to the coal industry itself? I 

think we have to come down on the side of protecting the coal min-
40 

ers. I think if we had Upper Big Branch to do over, everyone 

around here would agree with that. 

Ms. WOOLSEY. So, Mr. Bumbico—— 

Mr. BUMBICO. Bumbico. 

Ms. WOOLSEY. Bumbico? 

Mr. BUMBICO. Yes. 

Ms. WOOLSEY. Okay, let us keep going with this. What does 

NMA have—what are their thoughts on proposals to enable MSHA 

to place bad actors on POVs? Or do they think the status quo 

works? 

Mr. BUMBICO. We agree with the concept of Pattern of Violation 

and the need to ferret out operators that aren’t playing by the 

rules. I think what we disagree is the method with which MSHA 

would propose to go about enforcing that. 

Ms. WOOLSEY. So how would you go about it? 

Mr. BUMBICO. With regard to the final orders, I think I would 

call to the subcommittee’s attention the fact that 20 percent of the 

S&S violations that are contested end up getting modified. And if 

you look at more elevated orders like 104-Ds, that over 30 percent 

get modified. In addition, I think that what you are seeing within 

the industry right now is an influx of a lot of new inspectors. And 

in a recent survey—— 

Ms. WOOLSEY. Well, you have got all that, the training and all 

that. We don’t fund MSHA, so what are we going to do? I mean, 

if I were you, I would be sitting there saying, ‘‘Get us the best inspectors we can, train them, and make sure they are out there. 

And we will support that investment.’’ 

Mr. BUMBICO. I think the biggest fault that we had with the previous way the Pattern of Violation was operated is that the type 

of changes that MSHA was requesting weren’t the type of process 

changes that would lead to long-term safety improvement. 

Ms. WOOLSEY. Well—— 

Mr. BUMBICO. They were safety awareness programs that might 

be a quick fix and lead to a short-term result. But in terms of longterm, continuous improvement, they weren’t insisting on those type 

of changes. 

Ms. WOOLSEY. On short-term. But we are talking about the longterm Patterns of Violations that are going to eventually end up in 

a very serious situation like Massey. And that is what we are 

going—we are going after the bad actors first. 

Chairman WALBERG. Thank you. Gentlelady’s time is expired. 

We will move on to the chairman of the full committee, the gentleman from Minnesota. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank you to all the witnesses for your testimony. 

Mr. Bumbico, sort of picking up the general theme here, it seems 

to me that the industry was pretty supportive of the Miner Act in 

2006. And Mr. Roberts has indicated the union’s support of that 

legislation. 

And yet, I am pretty sure that the industry has not been that 

supportive of Best Miner—or the Miner Safety and Health Act. Can 

you kind of explain why that is, why support of one and what is 

the problem with the others, as we are looking at what we might 

do in this committee and the full committee and Congress in light 
41 

of the Upper Big Branch tragedy? What are your concerns? What 

is the difference? 

Mr. BUMBICO. I think the difference is that in 2006, there was 

a pretty equal playing field and a lot of give and take on the various stakeholders. And in the most recent attempt to look at legislation, there were a number of companies that attempted to enter 

into discussions, but we weren’t able to satisfy the concerns we 

had. 

And some of the concerns we had were, one, there were a number of items that were in that bill that, in effect, could have been 

done anyway by MSHA. And, in fact, if you look at the rock dust 

standard, if you look at the pattern of violation, there were a number of things there that MSHA has moved forward on without the 

need for legislation. 

In addition to that, there were some provisions in that bill, such 

as the changing definition of S&S citations, that would have made 

it extremely difficult for any violation not to have been an S&S. So 

those were issues that kind of hung up the process. 

I think, you know, the biggest concern that we have is that the 

average front line supervisor right now has over 300 pages of regulations in the code of regulations that they have to deal with on 

a day-to-day basis. I think we would be better served to try to improve the way that they understand and deal with what is on the 

books now than creating additional legislation. 

Mr. KLINE. Okay, thank you. I am going to stay with you, Mr. 

Bumbico, for another question, kind of shifting and thinking about 

how different countries have different approaches. And Australia, 

for example, has a very different approach that I assume that you 

are familiar with in their risk management. Can you explain for all 

of us here the differences and what you like or don’t like about 

those differences? 

Mr. BUMBICO. Well, the fundamental difference is the difference 

between prescriptive regulations and a requirement that an operator look at the major risks and hazards that they have and come 

up with ways of dealing with them. Under the Australian model, 

those mining companies are charged with evaluating their major 

risks and coming up with procedures, processes that they put in 

place to deal with them without as much prescriptive regulation on 

the part of government. 

In the U.S., we have very detailed, prescriptive regulations that 

they deal with things one, two, three, four progression. And the 

problem with that is that when you look at a coal mine, a coal 

mine is a very dynamic, changing environment. And if you focus 

strictly on prescriptive ways to deal with safety, you kind of lull 

people into the suspicion that if they do a, b and c, that d is automatically going to result. 

I think what we have to get to here in this country is moving 

the conceptual skills of people, from the safety standpoint, to a 

higher level. We have to help miners become better problem solvers, risk identifiers so that they can deal with the changing environment that they deal with in an underground and a surface coal 

mine. 
42 

Mr. KLINE. So in Australia, for example, the mine operator identifies a risk, assesses a risk and develops a program to address 

them. And then who oversees that? 

Mr. BUMBICO. They have oversight from the government, but it 

is more oversight on what they put in place to determine whether 

they are—you know, whether they are complying with that. 

Mr. KLINE. Okay, thank you. 

I was going to go to Mr. Griesemer and talk about agri-mining 

and training, but in compliance with the chairman’s rules and my 

ever-desperate hope that we will all comply by the lighting system, 

I will yield back. 

Chairman WALBERG. Thank you for the continuing mentoring, 

Mr. Chairman. I appreciate it. 

Now we will go to the—— 

Mr. KLINE. [Off mike.] Mr. Miller—— 

Chairman WALBERG [continuing]. The gentleman from California, Mr. Miller. 

Mr. MILLER. Thank you very much, Mr. Chairman. And thank 

you for having this hearing. 

Mr. Bumbico, in response to Chairman Kline’s question, your difference in last year’s legislation and before is that you say that 

MSHA has the authority to do this, so you don’t—do you support 

their effort to go to citations versus final order? 

Mr. BUMBICO. No, I don’t. 

Mr. MILLER. Do you support their rock dust changes? 

Mr. BUMBICO. Yes, I believe that there is pretty much a consensus within the industry that what they have done from a rock 

dust standard standpoint is a good thing. 

Mr. MILLER. What would you do about whistleblowers? 

Mr. BUMBICO. Whistleblowers, I believe, at this point have adequate protection under the existing law. 

Mr. MILLER. What happened to the person that you fired for 

showing the video of the leaking water seals? 

Mr. BUMBICO. I think—— 

Mr. MILLER. Was that retaliation against a whistleblower? 

Mr. BUMBICO. I think you are mischaracterizing what occurred 

there. 

Mr. MILLER. You characterize it for me. 

Mr. BUMBICO. Sure. One, I am not going to talk into great detail 

because that issue is currently matter of civil litigation. But I will 

say this: The individual questioned took a video camera underground and did a tape of seals that were leaking. Instead of calling 

that to the attention of mine management or instead of calling 

MSHA and complaining about the problem, he took the videotape 

and brought it to a public hearing to show it. And then after the 

fact—— 

Mr. MILLER. So he never addressed it prior—he never addressed 

this prior with you, the company? 

Mr. BUMBICO [continuing]. The issue was dealt with. No. The individual questioned—— 

Mr. MILLER. I don’t think that is what the record shows. 

Mr. BUMBICO [continuing]. In fact, was not fired, as you characterized it, for the action in question. He was laid off in a reduction 

in force pursuant to the—— 
43 

Mr. MILLER. So what is your—what is your position—— 

Mr. BUMBICO [continuing]. Terms of the labor agreement that he 

was working under. 

Mr. MILLER. What is your position on whistleblowers? 

Mr. BUMBICO. I believe whistleblowers should have a protective 

status under the—under the law. And I believe that they have adequate protection as it is. 

Mr. MILLER. So you don’t have a problem with that in the legislation? 

Mr. BUMBICO. I had a problem with the way it was characterized 

in the legislation for the supplemental Miner Act. 

Mr. MILLER. But you believe, as a matter of law, they should be 

protected? 

Mr. BUMBICO. I do. 

Mr. MILLER. Okay. You have an internal, what did you call it, 

BBC. Is that—— 

Mr. BUMBICO. Behavior-based safety. 

Mr. MILLER. BBS. And that is an internal corporate policy? 

Mr. BUMBICO. That is correct. 

Mr. MILLER. And in your testimony, your measurements of that 

for us are that the—what you call the total incident rate from 1998 

to 2010 and the lost time rate has been on the overall decline, overall, that you had some ups and downs, but basically on the decline. 

Is that correct? 

Mr. BUMBICO. That is correct. 

Mr. MILLER. So how does that sit with an average of about 1,500 

citations a year? Where do these two things—what is one telling 

us and the other is telling us? 

Mr. BUMBICO. I am not sure what you are asking. 

Mr. MILLER. Well, and you have the safety program that is, in 

theory, on the decline, by your measurements. And yet, you have 

been cited violations from 2005 to 2010 and running maybe the 

same rate this year of about 1,500 citations a year. 

Mr. BUMBICO. Well, I think as you look at the increased inspector 

presence that we have had at our operation since 2006, the number 

of inspector shifts have gone up about 20 percent at our mines, as 

they have at most other mines. And to put that number in context, 

our violations per inspection day still only average less than .5, 

which, by industry standards, is very strong. 

Mr. MILLER. But at the end of the year, you end up with about 

1,500—— 

Mr. BUMBICO. I would also mention—I would also mention 

the—— 

Mr. MILLER. At the end of the year—let me just finish my sentence—you end up with about 1,500 violations. 

Mr. BUMBICO. And over 4,100 inspector shifts. 

Mr. MILLER. So what are those 1,500 violations telling you as a 

company? 

Mr. BUMBICO. I think you have to look at each—— 

Mr. MILLER. That they are all wrong, or the workers’ fault? What 

are they telling you? 

Mr. BUMBICO. Well, in many cases, they are not correlated with 

safety issues. And I can give you a couple of examples, if you would 

like. 
44 

Mr. MILLER. Well—— 

Mr. BUMBICO. We had a number of violations that were—— 

Mr. MILLER. In many instances, they are correlated with safety. 

They are about ventilation. They are about rock dust. They are 

about the conditions in the mine. And we can argue it either way. 

I am just trying to determine when you look at—you have your 

indicators and you say this is a safe operation. It ought to be—essentially, everybody ought to adopt this in the industry. And yet, 

you still have—and those are either because, what, the inspectors 

aren’t skilled enough or it is the workers’ fault? I mean, I am just 

trying to determine how we measure the workplace. 

Mr. BUMBICO. We also look at violations as indicators of safety 

performance. But we take it a step further. We look at whether 

there was an underlying safety issue related to the violation. 

In one instance, we had a new inspector that came into our 

Mount Laurel mine. And he had an issue with the location of an 

AMS sensor, atmospheric monitoring system sensor. He had them 

move it a couple of feet in by. And this was a system that had been 

used by MSHA as a model of how to design the system in the past. 

And not only did he issue a violation for that one belt head, but 

he also issued it for every belt in the mine. 

Mr. MILLER. Now, I love the fact—I mean, I appreciate you 

love—— 

Mr. BUMBICO. So in many cases—— 

Mr. MILLER [continuing]. The question is—— 

Mr. BUMBICO. The manner in which they are enforcing the regulation—— 

Mr. MILLER. What does the body of 1,500 citations tell you? You 

can pick one out. I will pick one out. Let us just look at them and 

ask the question what does that tell you. Is that consistent with 

your safety program? Is it inconsistent? Does that tell you about 

modifications that have to take place? Or is it good enough? 

Mr. BUMBICO. It is an indicator that we need to look to see if 

there is an underlying problem. That is how we deal with it. 

Mr. MILLER. Thank you. 

Chairman WALBERG. The gentleman’s time is expired. 

Ms. WOOLSEY. Mr. Chairman? Mr. Chairman? 

Chairman WALBERG. Yes? 

Ms. WOOLSEY. I would like to enter into the record, with unanimous consent, the Charles Scott Howard decision, the discrimination proceedings regarding the whistleblower issue we were just 

talking about. And, quote, in it, ‘‘Besides Howard, at least one 

other pre-shift examiner had brought the leaking seals to the attention of management.’’ 

[The information follows:] 

Prepared Statement of Tony Oppegard, Attorney for Charles Scott Howard 

Attached are 27 entries from the preshift examination book at the Band Mill No. 

2 mine operated by Cumberland River Coal Company (Eolia, Letcher County, Kentucky), which are signed by Charles Scott Howard and which document hazardous 

conditions that Mr. Howard found at the mine seals (‘‘leaking water’’, ‘‘cracked’’, 

etc.) during his daily preshift examinations. 

These preshift exam reports cover the period of April 19—May 24, 2007. You will 

note that each exam report completed by Mr. Howard was countersigned by a mine 

foreman for CRCC, which indicates that the foreman had reviewed Mr. Howard’s 

findings. 
45 

Mr. Howard testified at his 105(c) safety discrimination trial on December 17, 

2008, that in addition to documenting the unsafe condition of the mine seals on numerous occasions in the preshift exam book, he had also informed several CRCC 

foremen of these unsafe conditions. Those foremen were John Scarbro, Terry 

Mullins, Bob Kilbourne, Ronnie Adams, Steve Sturgill, James Turner and Eddie 

Niece (Transcript @ 420). 

The attached preshift exam reports, as well as the cited testimony of Mr. Howard—which was not rebutted at trial—clearly contradict the testimony of Anthony 

Bumbico of Arch Coal at the May 4, 2011 hearing ‘‘Modernizing Mine Safety’’ before 

the House Subcommittee on Workforce Protections. At that hearing, Mr. Bumbico 

falsely testified that Mr. Howard had shown the video of the leaking seals at the 

MSHA public hearing on July 12, 2007, without first informing Cumberland River 

Coal Company of the problems with the seals. Of course, that allegation is utterly 

untrue. 

It should also be noted that John Scarbro, the superintendent of the Band Mill 

No. 2 mine, admitted at the 105(c) trial that Mr. Howard had told him that the 

mine seals needed to be repaired (Transcript @ 51). That occurred months prior to 

Mr. Howard showing the video at the MSHA public hearing. 

Finally, given Mr. Scarbro’s admission that the mine seals were leaking for a period of 31⁄2 months before they were fully repaired at the end of May, 2007 (Transcript @ 54), it is clear that upper level mine management for CRCC was well aware 

of the hazardous condition of the seals for a substantial period of time long before 

Mr. Howard showed the video on July 12, 2007. Mr. Bumbico’s implication that 

CRCC was somehow blindsided by Mr. Howard’s presentation at the public hearing 

has no basis in reality. 

We would appreciate if you would enter this correspondence in the official hearing 

record so that Mr. Bumbico’s inaccurate testimony does not go unchallenged. Please 

also note Mr. Howard’s support for the mine safety bill that you have introduced. 

The bill’s protections accorded to miners who speak out for safety on the job are vitally needed. 

Thank you for your consideration and for your vigorous work on behalf of miners’ 

safety & health. 
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Chairman WALBERG. Without objection. 

Do we have a copy? 

Ms. WOOLSEY. Yes, there you go. 

Chairman WALBERG. Okay, thank you. 

We will now move to the gentleman from Indiana, Mr. Rokita. 

Mr. ROKITA. Thank you, Mr. Chairman. I appreciate you having 

this hearing and the Committee’s continued interest in this subject 

matter. 

I also want to thank the witnesses. 

My first question goes to Mr. Ellis. Regarding modernizing mine 

safety, your testimony concluded by stating that, ‘‘The measure of 

success is not the number or severity of the enforcement actions 
88 

taken against mine operators, but the safety and health of the mining workforce.’’ True? 

Mr. ELLIS. Correct. 

Mr. ROKITA. Given your background and experience with MSHA 

and the review commission, can you explain how, briefly, how the 

inspectors are evaluated, number one? And I would like to know 

if there is a quota for violations. I have several constituents in the 

district that tell me stories. But you could probably put some light 

on it. And then, is it ever acceptable or even conceivable for an inspector to have no citations from an inspection? 

Mr. ELLIS. Let us go last question first. 

Mr. ROKITA. Yes, it is conceivable that an inspector can go 

through an inspection and issue no citations. I mean, as has been 

discussed earlier, enforcement sometimes is a reflection of what the 

safety performance is at the company. But more than anything 

else, it focuses in on unsafe conditions. 

And that inspector may find that there are no unsafe conditions 

at that mine. And therefore, you would end up with a clean inspection. 

Mr. ROKITA. Quick follow up—does that happen in practice? 

Mr. ELLIS. No, as a matter of fact. It is in most situations that 

second set of eyes from MSHA finds something. And in some cases, 

they find more than one thing. Could I ask you to repeat the second part of your question or the first part? 

Mr. ROKITA. Sure. How inspectors are genuinely evaluated. You 

know, what makes a good inspector at MSHA? 

Mr. ELLIS. Well, I mean, inspectors ideally have 5 years of experience in industry before they come into the inspectorate force. And 

then they go through training at the Mine Health and Safety Academy in Beckley, West Virginia for a couple of years. 

And then they move out into the field and work out in the field 

as inspectors. And, you know, it is a process where they move 

around to different operations so they get exposed to different types 

of conditions and different types of mines. 

Mr. ROKITA. In your experience now, do you have any idea what 

percentage of MSHA inspectors actually have 5 years of experience 

in the industry? 

Mr. ELLIS. I don’t know, but I know that when I was at the agency—and it is still on the cusp of it—is that MSHA has a very senior 

workforce. A lot of the inspectors are of retirement age and they 

are retiring. And the agency is actively trying to recruit to backfill 

those positions. 

And so, there is a culture shift that is going on with people that 

have had substantial experience in the industry and substantial experience as inspectors that are leaving. And we are having new 

people come in. And there is a learning curve there. 

Mr. ROKITA. Thank you very much. 

Let me switch over to Mr. Griesemer for—did I pronounce that 

right? I apologize. Thank you—kind of a follow up to that same line 

of questioning, quote, unquote—‘‘the second set of eyes.’’ 

I am getting reports that one inspector will go in to a place of 

business and pass over something, just to make the example simple. Something hangs on the wall or something hangs on a piece 

of equipment. And no report that anything was a problem. A sec-
89 

ond inspector comes by, weeks or months later, ‘‘Oh, well, that has 

to be moved. That is not right,’’ or whatever the situation is. 

The company then spends a good deal of money making that correction. Now, for the third inspection, it is the first inspector coming by again. ‘‘Why did you move that? Put that back.’’ So the nonuniformity in the inspection procedure, in the policies seems to be 

an issue. 

One area you believe MSHA could improve is its training inspectors in the specific requirements of your industry. I think that was 

your testimony. Can you explain how aggregates maybe are different from other segments of the industry? 

And is this a problem in the inspection process? Do we have inspectors going to different segments of the industry? And could 

that be contributing to what I just explained? And I am sorry, I 

have given you little time to respond. 

Mr. GRIESEMER. I would say, yes, it is all of that. I think the increased frequency of inspections actually contributes to that somewhat in that we are now seeing 100 percent of our twos and fours 

in the aggregates sector. 

And in this down economy, I have to say a lot of us small producers aren’t even running 12 months a year. So it is particularly 

a burden for an inspector to come back. 

Nothing changes in 6 months in our operations compared to, like, 

an active—another mine, a larger mine. We may only have six or 

seven employees at a surface operation. And the number of inspections that they come in and they do to rotate inspectors. So there 

is this a new set of eyes and ears every time. 

Mr. ROKITA. And that is good or bad? 

And I yield back. 

Chairman WALBERG. Thank you. 

Mr. GRIESEMER. We think the resources could be better used 

elsewhere. 

Mr. ROKITA. Thank you. 

Chairman WALBERG. Turn now to the gentleman from New Jersey, Mr. Payne. 

Mr. PAYNE. Thank you very much. And I am glad that we are 

having this hearing. 

As you know, several years ago, I did go down to a mine. And 

I really have to commend workers in the mines for the challenge 

that they have. And I think they are very honorable and hardworking people. 

It kind of amazes me, though, that I find that sometimes the 

mine owners have sort of a kind of a lackadaisical attitude about 

the protection of these hard-working Americans who really put 

their lives on the line. 

I just have a question. And, as a matter of fact, believe it or not, 

around the world—and I have traveled to South Africa where the 

mine workers really were very active, even in the anti-Apartheid 

work, even in Zambia. The miners protested, where the Chinese 

are really running the mines and have armed guards. And they 

protested. And the mine owners even listened to them. 

And, of course, what we saw in Chile. So it seems I still get an 

uncomfortable feeling about the attitude, it seems, cavalier attitude 
90 

of mine owners for these people who really jeopardize their lives so 

much. 

Let me just ask you, Mr. Roberts, about 2 weeks ago, the Robert 

C. Byrd Mine Safety Protection Act was refiled. It will strengthen 

criminal penalties, improve protection for miners’ rights and modernize use of technology to prevent explosions in coal mines. How 

should Congress go about modernizing mine safety, in your opinion? And does this bill take the proper approach? 

Mr. ROBERTS. Thank you for the question. And I don’t mean to 

be critical of anything that has been raised here today. But when 

we look at the situation that exists as we gather here today—and 

we know that 70,000 coal miners have died from pneumoconiosis 

in the last 40 years. And 10,000 of those died in the last decade. 

We know that we have seen an explosion, the worst disaster that 

we have seen in 40 years just a year ago when 29 miners lost their 

lives. We know in 2006 that we had a terrible explosion at Sago. 

A couple weeks later, miners were caught in a fire and died at 

Aracoma. 

And then we saw nine miners die, six instantly, at Crandall Canyon, and three trying valiantly to rescue them in 2007. And whether or not the most important thing that we should be talking about 

is did somebody write a citation that was consistent or inconsistent 

seems to not be speaking to the fact that—we know there is a coal 

mine right now, right now that I just raised that might explode 

and would have exploded had MSHA not been there. That seems 

to be a much greater problem, from my perspective, than perhaps 

someone feeling they got treated poorly. 

And I apologize if that sounds harsh. I don’t mean for it to come 

across that way. But all you have to do is meet some of these families and talk to them and some these miners, too. What is the most 

important thing we could do? Well, we could modernize what we 

are doing, as a government. 

Let me give you a perfect example of that. The way we test the 

explosibility of coal dust, for example. You may have read this. 

MSHA took a sample from the Upper Big Branch mine. And the 

way they test those now, they send them to a lab in Mount Hope, 

West Virginia. 

They took a sample at Upper Big Branch before the explosion. 

Ten days after the explosion, sample came back, and it was way 

out of line. In fact, it was 80 percent explosible, I guess is the word, 

that they used. So that told everyone, once the sample came back, 

well, something should be done here. 

Quite frankly, those of you that know anything about coal mining 

and have been in a coal mine know you can just about look and 

see that. If you have got coal dust all over the mine, that is like 

gun powder. That is like gun powder. And it is more explosive than 

methane. Methane ignites. Methane explodes. Then it ignites the 

coal dust. 

You cannot have an explosion like you had at Upper Big Branch 

without being totally and completely out of compliance. And all the 

evidence suggests that. So we have had the samples come back. So 

we need to modernize this. 

Inspectors need to be armed with the ability to know what is in 

the atmosphere immediately and the explosive range of the coal 
91 

dust that is there, whether there is enough rock dust on it. And 

MSHA has taken actions to try to increase those standards. But we 

need to act and act quickly and modernize the tools that MSHA 

has to determine these factors and to be able to deal with those 

when they find them. 

We should be about the business, I think, of making sure that 

we are not here next week or next year talking about this mine exploded in West Virginia or Kentucky and what do we need to do 

about it. And let us be honest about it. There has never been a law 

passed here, except one time, and that was 1977, and that was revisions to the 1969 Act. 

We would never passed the 1969 Act if we hadn’t had those coal 

miners die at Farmington. We would have never acted in 2006 if 

we hadn’t had those miners die at Sago and Aracoma and then 

Darby. What has prompted every action by this Congress—not this 

particular Congress, but Congress itself—has been a terrible tragedy. And I think we can do better than that. 

Chairman WALBERG. Thank you, Mr. Roberts. 

The time is expired. And I am glad I concurred with you in some 

of my opening statements on that. And I think we all agree. It is 

how we get to that point is the question. 

I turn now to the gentleman from Pennsylvania, Mr. Kelly? 

Mr. KELLY. Thank you, Mr. Chairman. 

And all the witnesses, we do appreciate you being here. 

I come from the private sector. I am an automobile dealer. And 

I think we all would agree that our main concern is making sure 

that whatever line of work you are in, you are doing, it is safe. And 

I think the danger when we have some of these hearings is that 

we get a polarization between those that operate a business versus 

those that work in these businesses. 

And coming from a situation where it is very important for my 

workers to be safe because that ensures my ability to stay in business—and when I look at this, I have been through several mines 

myself. And I have friends that have been from Western Pennsylvania. There is an inherent risk for going underground and working in these situations. I agree with that. I don’t think there is any 

question about that. 

Then the question becomes then, okay, can you legislate safety? 

Can you legislate common sense? Can you legislate practical purposes that make sense for everybody? 

And I think the difficulty that we have, on this side of it, is how 

do you come up with a situation—there is a term in the military. 

It is called SLOJ, just s, l, o, j. It is a sudden loss of judgment 

where people walk into the tail rotor of a helicopter. 

Now, you could come up with the law says, don’t walk within an 

area where the helicopter is parked. There are certain things, like 

chocking the tires on that truck, that are very important. In my 

business, you are supposed to wear a hard hat and safety glasses 

when they are working on the underside of a car. Nobody does it. 

That is the rule, but nobody does it. 

And let me ask you. Because I have watched this. And I have 

been through OSHA inspections myself. And some of it gets to the 

point of it is like a traffic violation. Well, it would be called a traffic 

violation, maybe one for speeding, where you were going 25 in a 
92 

15-mile zone or you were going 85 in a 50-mile zone. There is a big 

difference. 

Tell me about some of the citations, Mr. Griesemer. Because I 

have friends who were cited. And my problem with all this is there 

is no remedial purpose to this. When they do an inspection, to sit 

down where you say, you know, we found some problems. We think 

you need to address them. I mean, leaving the lid off a garbage 

container, to me, doesn’t have the same consequences as maybe the 

coal dust would be. 

The distance of a fluorescent light from the top of a desk maybe 

doesn’t have the same consequences of not having a safety room for 

people to go to. So if you could just walk us through what one of 

the inspections are. And do you even have the opportunity to fix 

what they found was wrong? And it is the inconsistency of the inspections, I think, that makes it very difficult come up with a policy that makes sense for all of us. 

Mr. GRIESEMER. Thank you, Congressman. I agree exactly with 

what you are saying. I have been doing this for over 30 years. 

There has been a big change in the way inspections have been performed in those—in that period of time. We used to have inspectors 

come out to the plant and they would actually give safety talks to 

our people, which we welcomed. 

And there was more compliance assistance in the early years 

than there is today. And the emphasis has changed in the last few 

years to enforcement. I see it. They write it up. And there is a penalty assessed. 

It is a prescriptive—somebody had mentioned that before—a prescriptive solution. I think we have to go—we have to engage everybody. We have got the CEOs, the middle managers engaged. We 

also have to engage the workers because we have to have their 

hearts and minds about safety as well. 

And I think we are not emphasizing enough there because we 

are needing—the small operators are going to have to have some 

assistance. MSHA is talking about closing the small mines office. 

And it is the compliance assistance that is going away. And it is 

the enforcement that is being emphasized over and over again. 

I just agree with you. I think it is the wrong way to go. The instance of my truck driver not chocking the wheels, I think you 

could use that as an example of we had provided the chocks. We 

had provided the training. The company had done everything except anticipate and tell him specifically, you get off that truck for 

1 minute, you have to chock the wheels. 

We want them to think about that themselves. You have to have 

the worker engaged in safety before those things will happen. 

Mr. KELLY. Okay. 

Mr. Roberts, do you have an opportunity to sit down, then, with 

management and go over common concerns and then come up with 

common answers or solutions to it? Because I think, really, best 

practices are usually the result of, not only those that own the 

mines, but those that work in the mines. Does that opportunity 

exist? Because I think that would be invaluable to everyone. 

Mr. ROBERTS. It certainly does exist, particularly at unionized 

operations. There is a process in the contract itself that is called 

the labor/management positive change process where those kinds of 
93 

issues are dealt with. Unionized mines have safety committees that 

work very closely with management. 

But the truth is that many of the mines in this country are nonunion, and the workers are unrepresented. And it is management 

who dictates or decides what the health and safety operations will 

look like and what the policies will be. So, yes, at unionized mines 

there is an opportunity for this kind of dialogue. We do engage in 

it. 

In fact, we not only engage in it at the local level, at the mine 

level. We do it at the national level also. 

Mr. KELLY. Okay, thanks. Appreciate it. 

Mr. Chairman, thank you. 

Chairman WALBERG. Gentleman’s time is expired. 

Now we move to the gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. I want to thank you and 

Chairman Kline for having this important hearing. 

I also want to thank the witnesses for informing those of us who 

are not as familiar with these issues and for your professionalism 

and civility towards one another as you testify. 

Mr. Chairman, I was particularly interested in the gentleman 

from Indiana, Mr. Rokita’s, line of questioning. And I would yield 

to him such time as I may have. 

Mr. ROKITA. Thank you. And I thank the gentleman from South 

Carolina, a good friend and certainly a gentleman in every respect. 

Continuing on with my questioning of Mr. Ellis, please. In your 

capacity as president of the National Industrial Sand Association, 

are you following MSHA’s regulatory agenda proposal to further 

regulate crystalline silica? 

Mr. ELLIS. Yes. 

Mr. ROKITA. Okay. Can you explain what companies are currently doing to prevent exposure to the silica? And do you believe 

a further reduction in the permissible exposure limit can be 

achieved? 

Mr. ELLIS. Let me start out by saying crystalline silica is a technical name given to a substance that we are all familiar with, 

quartz or sand. And that is the substance we are talking about. 

But when it is in respirable size, it is potentially harmful to the 

human lung. And it causes disease. It causes silicosis. 

And everybody should appreciate that it is a preventable disease. 

So it is something that needs to be taken seriously. We can prevent 

that disease. 

The rulemaking that is being considered right now conceivably 

would look at whether we lower the level from what it currently 

is to whether or not we need to add additional provisions to the law 

to capture overexposures and eliminate them. So, yes, we are 

watching that rule very carefully. 

Mr. ROKITA. Okay, thank you. 

And switching over to Mr. Bumbico, I appreciate your testimony. 

Using a little bit of my time, is there anything you want to add to 

Congressman Miller’s line of questioning? Or do you feel like that 

was fully answered? 

Mr. BUMBICO. I think what I would like to add is that it is very 

possible, very probable that the indicators we are looking at as to 

what is safe and what is not safe are the wrong indicators. You 
94 

know, prior to the disasters that occurred in 2006, the industry was 

very comfortable because the number of injuries had been trending 

down, the number of fatalities trending down. And I think that is 

what caused those disasters that proceeded to be such a shock because we were thinking that progress was being made. 

In my estimation, we are looking at the wrong thing. Looking at 

injuries, looking at regulatory compliance is looking backwards. 

And what we need to be doing is looking forwards. We need to be 

teaching people how to identify exposures, how to identify risks 

and how to deal with them. 

Mr. ROKITA. Thank you. 

Mr. MILLER. Will the gentleman yield? 

Mr. ROKITA. Yes. 

Mr. MILLER. Yes, thank you. 

On that point, I mean, that is—I was trying to get to this point, 

to some extent, maybe not exactly as you said. But I represent a 

lot of heavy industry, oil refiners, chemical industry, steel mills 

and others. And we have seen in this committee, and we saw the 

tragedies of British Petroleum at Texas City where all this concentration was on trips and falls as opposed to processes and how 

you are doing your job and what is it you should be thinking of 

when you have this specific job to do, whether it is shutting down 

a vessel, reworking a turnaround. 

And I think we are moving in that—in that direction. And, you 

know, I don’t want to say that it is just a matter of trips and falls 

in the mines. 

But the real question is what is the—what is the Pattern of work 

and what is the patter of safety considerations for this project that 

we have in this vein, this type of mine, this operation, what have 

we done ahead of that. And what we are seeing is where industry 

is starting to adopt that, and many have, that it does seem to 

change the consciousness of everybody involved from the management to the worker in the sense that maybe we need additional resources or protections. 

Mr. ROKITA. Thank you. Reclaiming my time. 

Mr. MILLER. Thank you. 

Mr. ROKITA. And assuming you asked a question, real quick, 

please. 

Mr. BUMBICO. Can I respond to that? 

Mr. ROKITA. Yes. 

Mr. BUMBICO. I think the process I am talking about has to take 

place on two levels. You have to do a risk assessment at a major 

hazard level to look at what might cause an explosion and a fire 

and also take that down to the employee level so that lesser risks 

could be dealt with, too. And the two merge into one culture, if it 

is done effectively. 

Mr. ROKITA. And then finally, Mr. Bumbico, the industry supported the Miner Act of 2006. That was before my time, but I understand that to be the case. But you did not support the S Miner 

Act and most recently, the Miner Safety and Health Act. Can you 

explain why industry has taken two different positions on mine 

safety, in less than a minute? 

Mr. BUMBICO. I don’t see this as taking two different positions. 

I think the positions have been consistent. I think in the case of 
95 

the Miner Act, the parties were able to get together and determine 

what the underlying changes needed to be. That wasn’t the case 

with the supplemental Miner Act. 

As I mentioned earlier, there were a number of things that were 

in the S Miner Act that could have been done anyway by MSHA 

that didn’t require a new legislation to enact them. At the same 

time, there were some provisions in there, like the definition of 

what was a serious and substantial violation, that would have fundamentally changed enforcement and made it very, very difficult 

for the industry to comply. 

Mr. ROKITA. I thank you. 

I thank the witnesses. 

Again, I yield, Chairman. 

Chairman WALBERG. I thank the gentleman. 

And I also would like to, again, thank our witnesses for taking 

the time to testify before the subcommittee today. It has been enlightening for us. And I appreciate the perspective that has come 

across the spectrum and the questioning coming from the committee. 

And so, now I would take time to recognize the ranking member, 

the gentlelady from California, Ms. Woolsey. 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

We were hoping for a second round of questions. So I will yield 

1 minute to Congressman Payne and 1 minute to Congressman 

Miller, if they want to say—— 

Mr. PAYNE. Well, just very quickly, maybe, Mr. Roberts, the 

characterization of the difference between the Miner Act and why 

the industry opposed it. What do you think about the S Miner? 

Was it such a radical—or was it the company wanted to write the 

act? Or what is the deal? 

Mr. ROBERTS. I don’t see it that way at all. And, in fact, we supported that. We also support the Robert C. Byrd Act also. 

Mr. PAYNE. All right. Great. 

Ms. WOOLSEY. One minute? Okay, thank you. 

Thank you, Mr. Chairman. 

All this business about blaming the workers. For heaven’s sakes, 

I was a human resources director for 10 years of a high-tech manufacturing company. It was so clear to me. Now, that is not coal 

mining. It is not, you know, rock mining. I know there is a difference. 

But the difference is that we knew, as employers, as the bosses, 

that it was our job to put together safety policies that our employees followed. If they didn’t follow it, we had disciplinary programs 

in place. Because if you don’t follow the safety rules and you are 

going to risk your life and anybody else’s, that is a disciplinary 

problem. 

And we also had really—it doesn’t sound like it when I am going 

on and on like this. But we had really good employee/employer relations. That makes a difference. We had a safety committee. We 

had 800 employees, so it is not like we had 12 people. 

And, you know, you can do it. And you cannot blame the worker. 

You can’t blame the worker when the worker—we had suggestion 

boxes. If the person that had those seals knew about the water 

seals or anything close to it couldn’t get through their manager or 
96 

through their bosses, they would have put it in the suggestion box. 

Somebody would have heard it and cared about it. 

So, you know, if you want to modernize, then these industries 

have to join the 21st century and work with their employees. And 

you want partnerships? It is the employer/employee partnership. 

So, Mr. Chairman, thank you. We have built a foundation 

through numerous hearings and several Congresses for overdue 

mine safety reform legislation. 

And last year under Chairman Miller’s leadership, we brought 

reform legislation to the floor following consultation with the Upper 

Big Branch miners and their families and the mining industry, academics, state mine safety regulators, the inspector general and 

many, many others. It is not like we did this in a vacuum. 

Regrettably, opponents of the bill argued that it was premature 

to act before the investigations had been completed at Upper Big 

Branch. Well, this is a misleading argument because after conducting its investigation for over a year, MSHA persuasively argues that it knows enough about the accidents to justify making 

immediate changes to the Mine Act. 

So we can keep throwing challenges in the way, or we can prevent future accidents. That is up to us. I agree with Mr. Roberts. 

We can keep talking about this until another accident happens, or 

we can act on it. 

And I want to act on it with you, Mr. Chairman. Thank you very 

much. 

Chairman WALBERG. I thank the gentlelady. And I would certainly concur that we want to act—that we want to act appropriately. We want to act with reason. And we want to act with common sense, though that may not be so common anymore in the 

world today. 

We want to certainly not blame workers unnecessarily. We would 

not—we don’t want to blame the employers and the mine owners, 

the operators unnecessarily, either. We want to encourage—and I 

give credit to workers for good sense and for good experience that 

can expand our capabilities of moving forward in this area. 

And I think that is the reason for hearings like this and hearings 

that I would assure you with all good intentions of moving forward 

in the appropriate fashion, to make sure that, number one, we have 

a safe workplace for our—for our mine workers, but we also have 

a workplace for our mine workers that will go on with some security and that we will encourage that honorable profession to continue for as long as we need the product. 

I certainly remember my experience as a United Steel worker 

working at U.S. Steel South Works, Southside of Chicago. I certainly understand the impact of having union and management 

work together. I certainly understand the frustrations that were 

there at times. 

I certainly understand being a—being a steel worker working on 

a mobile platform or working on the platform related to the to 

the—to the steel heat itself and having the experience of coming 

back to a plant, fortunately, after having left it during a shift and 

not seeing the locker room there anymore because the heat had 

burned through the furnace and gone into the sewage system. That 

was not as a result of lack of regulation. 
97 

That was not as a result of a desire to cut corners by the company. That was certainly not the result of union workers desiring 

that lack of safety to take place. And fortunately, no life was lost 

because it was between shifts. It was operator error, clearly, at 

that point. How we protect against that goes with good regulation, 

good training and, again, common sense and care taken by employee and employer. 

So our purpose is to move that direction. I appreciate the testimony we have heard today. I appreciate seeing technology that can 

be used to foster improvement in the health and safety of our workers. And we certainly, as a subcommittee and ultimately as a full 

committee, want to deal with that in appropriate fashion. I know 

that there is further opportunity for giving input. 

That has been left open at the beginning of this hearing here for 

further information to be shared. This subcommittee is open to that 

and want to have that as part of our record. So having said that, 

there being no further business, the committee stands adjourned. 

[Questions for the record and their responses follow:] 

U.S. CONGRESS, 

Washington, DC, May 13, 2011. 

Hon. TIM WALBERG, Chairman, 

Subcommittee on Workforce Protections, Committee on Education and the Workforce, 

2181 Rayburn House Office Building, Washington, DC. 

DEAR CHAIRMAN WALBERG: As part of the hearing record, we ask that you seek 

written clarification from a witness, Anthony Bumbico of Arch Coal, about statements that he made during the ‘‘Modernizing Mine Safety’’ hearing on Wednesday, 

May 4, 2011. 

Witnesses before the Committee have the duty to provide truthful testimony, and 

the Committee must take care to ensure the integrity of its proceedings and the accuracy of the record we collect. For these reasons, Mr. Bumbico’s testimony, on behalf of both Arch Coal and the National Mining Association, is of concern. 

Specifically, Mr. Bumbico’s testimony appears to be contradicted by a final decision and order of the Federal Mine Safety and Health Review Commission 

(FMSHRC) regarding unlawful retaliation against Charles Scott Howard, an employee of Arch Coal’s subsidiary, Cumberland River Coal Company (CRCC), following his multiple disclosures to management, and subsequent release of a videotape that documented a number of seals leaking water at the company’s Band Mill 

No. 2 mine in Letcher County, Kentucky, at an MSHA public hearing. 

Defective seals present a potentially lethal risk for miners because if they break, 

they could lead to flooding and inundation. Pursuant to §303(d)(1) of the Mine Act, 

the preshift examiner must ‘‘examine seals * * * to determine whether they are 

functioning properly’’ and must note any violations of law or hazardous conditions 

in the preshift examination report. It is a requirement that mine management must 

countersign each pre-shift examination report, which provides acknowledgement 

that management has read the preshift examination report. 

Below is the transcript of the relevant questions and answers from the May 4 

hearing: 

‘‘Mr. MILLER. What happened to the person that you fired for showing the 

video of the leaking water seals? 

Mr. BUMBICO. I think—— 

Mr.MILLER. Was that retaliation against a whistleblower? 

Mr. BUMBICO. I think you are mischaracterizing what occurred there. 

Mr. MILLER. You characterize it for me. 

Mr. BUMBICO. Sure. One, I am not going to talk into great detail because 

that issue is currently matter of civil litigation. But I will say this: The individual questioned took a video camera underground and did a tape of 

seals that were leaking. Instead of calling that to the attention of mine 

management or instead of calling MSHA and complaining about the problem, he took the videotape and brought it to a public hearing to show it. 

And then after the fact—— 

Mr. MILLER. So he never addressed it prior—he never addressed this 

prior with you, the company? 
98 

1Docket # KENT 2008-736-D 

2Trial Transcript, December 16, 2008, pp. 51 

Mr. BUMBICO [continuing]. The issue was dealt with. No. The individual 

questioned—— 

Mr. MILLER. I don’t think that is what the record shows.’’ 

Indeed, there is substantial evidence which contradicts the underlined portion of 

Mr. Bumbico’s testimony. 

1. The August 13, 2010, FMSHRC decision in Charles Scott Howard v. Cumberland River Coal Company 1 stated that Mr. Howard notified management on 

many occasions, as did others, about the leaking seals. The opinion states: ‘‘During 

the performance of his duties in March and April 2007, Howard noted in the examination book that numerous seals at Band Mill were ‘leaking water.’ Howard also 

expressed his concern over the condition of the seals to many mine foremen, including John Scarbro, Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner.’’ 

2. Also according to documents included in the hearing record, in his capacity as 

a preshift examiner, Mr. Howard documented in the preshift examination book on 

11 separate occasions that the seals were leaking, as well as the fact that parts of 

the seals were cracked. John Scarbro, the mine superintendent, admitted under 

oath during the FMSHRC trial that Mr. Howard had informed management of the 

leaking seals within the mine. The trial transcript, which is a public document, 

states: 2

Mr. OPPEGARD (attorney for Mr. Howard): ‘‘Now, prior to Mr. Howard 

showing the video at a public hearing, he had been documenting in the preshift book that you had seals in the Band Mill Number Two Mine that were 

leaking water, had he not?’’ 

Mr. SCARBRO (Mine Superintendent): ‘‘Yes sir.’’ 

Mr. OPPEGARD (attorney for Mr. Howard): ‘‘And in fact, Mr. Howard had 

told you that those seals needed to be repaired, did he not?’’ 

Mr. SCARBRO: ‘‘Yes sir.’’ 

As I previously stated, witnesses before our Committee have a duty to provide 

truthful testimony. Given the questionable testimony provided by Mr. Bumbico, its 

inconsistency with other official records, and its relevance to oversight as well as 

pending and future legislation, we ask that you submit these questions to Mr. 

Bumbico in order to clarify the record: 

1. Prior to videotaping the leaking mine seals, did Mr. Howard call the leaking 

seals to the attention of management? Yes or no? 

2. Did John Scarbro, the mine superintendent, receive notification of the leaking 

seals? Yes or no? 

3. FMSHRC’s August 10, 2010, Decision and Order in Charles Scott Howard 

v.Cumberland River Coal Company stated that management personnel including 

Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner were also notified 

of leaking seals by Mr. Howard. Is this statement correct? Yes or No? 

4. Is your testimony factually correct that Mr. Howard, ‘‘instead of calling that 

to the attention of mine management or instead of calling MSHA and complaining 

about the problem, he took the video tape and brought it to a public hearing to show 

it.’’ Yes or no? 

5. Did Arch or its subsidiary CRCC, appeal the FMSHRC August 10, 2010, 

Decision and Order in this discrimination proceeding? If not, is this judgment 

final? 

This Committee has the obligation to maintain the integrity of its proceedings. If 

there is any question about the reliability of testimony, whether due to potential 

conflicts or otherwise, the Committee should give serious consideration to the administration of oaths to witnesses prior to their testimony. 

Thank you in advance for ensuring the witness’s answers to the above questions 

are included in the hearing record. 

Sincerely, 

GEORGE MILLER, Senior Democratic Member, 

Committee on Education and the Workforce. 

LYNN WOOLSEY, Senior Democratic Member, 

Subcommittee on Workforce Protections. 
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[Whereupon, at 11:30 a.m., the subcommittee was adjourned.] 

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