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64–658 PDF 2011

EXAMINING RECENT REGULATORY AND 

ENFORCEMENT ACTIONS OF THE 

MINE SAFETY AND HEALTH ADMINISTRATION 

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, MARCH 3, 2011 

Serial No. 112–8 

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 March 3, 2011 .............................................................................. 1 

Statement of Members: 

Payne, Hon. Donald M., a Representative in Congress from the State 

of New Jersey, questions submitted for the record .................................... 50 

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia, prepared statement of ..................................................... 57 

Rokita, Hon. Todd, a Representative in Congress from the State of Indiana, questions submitted for the record ..................................................... 51 

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

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

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

Prepared statement of ............................................................................... 13 

Submissions for the record: 

Feb. 24, 2011, grand jury indictment against Hughie Elbert Stover .................................................................................................... 5 

Slide, ‘‘FMSHRC Case Backlog Scenarios’’ ...................................... 48 

Statement of Witnesses: 

Main, Hon. Joseph A., Assistant Secretary of Labor, Mine Safety and 

Health Administration ................................................................................. 14 

Prepared statement of ............................................................................... 17 

Additional submission: ‘‘Disposition of Complaints Filed Under Section 105(c) of the Mine Act’’ .................................................................. 48 

Responses to questions submitted ........................................................... 52 

(1) 

EXAMINING RECENT REGULATORY AND 

ENFORCEMENT ACTIONS OF THE 

MINE SAFETY AND HEALTH ADMINISTRATION 

Thursday, March 3, 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 10:06 a.m., in room 

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

Present: Representatives Walberg, Kline, Rokita, Bucshon, Kelly, 

Woolsey, Payne, Kucinich, and Miller. 

Also present: Representatives Capito and Rahall. 

Staff present: Kirk Boyle, General Counsel; Casey Buboltz, Coalitions and Member Services Coordinator; Ed Gilroy, Director of 

Workforce Policy; Marvin Kaplan, Professional Staff Member; Barrett Karr, Staff Director; Ryan Kearney, Legislative Assistant; 

Brian Newell, Press Secretary; Molly McLaughlin Salmi, Deputy 

Director of Workforce Policy; Ken Serafin, Workforce Policy Counsel; Linda Stevens, Chief Clerk/Assistant to the General Counsel; 

Loren Sweatt, Professional Staff Member; Joseph Wheeler, Professional Staff Member; Aaron Albright, Minority Deputy Communications Director; 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; Celine McNicholas, Minority 

Labor Counsel; 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. 

Mr. WALBERG [presiding]. A quorum being present, the subcommittee will come to order. Good morning. And welcome to the 

Subcommittee on Workforce Protections. 

Let me also welcome to our subcommittee our distinguished colleagues from West Virginia, Mrs. Capito, who will be joining us, 

and Mr. Rahall. They are most welcome. And without objection, 

they will be permitted to join and participate in our hearing this 

morning. And I hear no objection. 

During today’s hearing, we will take a close look at some recent 

regulatory and enforcement actions of the Mine Safety and Health 

Administration. 
2 

I wish to thank Secretary Main for the time he has taken to be 

with us today. 

Mine safety is a shared goal that continues to develop and improve. In 1969, a great year, my high school graduation, the Coal 

Mine Safety and Health Act was enacted to provide a comprehensive legal framework to protect workers in above-ground and underground mines. In 1977, Congress passed the Federal Mine Safety and Health Act, which created MSHA. 

The Mine Act established several important safety requirements, 

including a mandate that inspections must occur twice a year for 

surface mines and four times a year for underground mines. Additionally, coal miners must perform their own safety inspections at 

the start of each shift, as well as weekly and monthly safety inspections. 

Congress has taken steps in recent years to strengthen mine 

safety laws, most notably with the 2006 Miner Act. The strong, bipartisan efforts in 2006 required MSHA to conduct an overhaul of 

its penalty policies and also led to increased penalties for the worst 

offenders. Despite the progress that has been made, more must be 

done to protect those workers. 

Last April’s tragedy at Upper Big Branch mine forever changed 

the lives of the families and community of Montcoal, West Virginia. 

This horrific event will forever serve as a stark reminder of the 

need to remain vigilant in providing strong and effective safety protections for America’s miners. 

Although nearly a year has passed, several investigations continue to search for the cause of our nation’s worst mining tragedy 

in four decades. While we are awaiting the findings of these investigations, it is vital we allow the results of the investigations to 

shed light on the—in this crisis so we can pursue the right reforms 

in a responsible way. 

I know many of us are frustrated by the delay and anxious to 

act. I recognize the sense of urgency to move forward with mine 

safety reform. Chairman Kline and I share that urgency. That is 

why we are here today. 

Improving miners’ safety must consider—improving miner safety 

must consider the efforts already underway within MSHA. Since 

the explosion at Upper Big Branch, MSHA has developed a series 

of reforms geared toward enhancing mine safety through existing 

law. These initiatives include changes to the pattern of violations 

process and emergency temporary standard on rock dusting and 

new regulations on miner exposure to coal dust. 

However, if there is one thing we know, it is the strongest laws 

on the books cannot protect miners if the agency charged with enforcing those laws fails to do so. An article in today’s Charleston 

Gazette reveals a 2010 report by your administration written just 

days before the Upper Big Branch tragedy. The report as described 

by the Charleston Gazette, ‘‘details serious enforcement lapses, including incomplete inspections and inadequate enforcement actions.’’ I am troubled by this report and hope you can provide greater details during today’s discussion. 

We have learned in recent years that the cause of workers’ safety 

is best advanced when we work together. We have a responsibility 
3 

to pursue common-sense rules that protect workers and hold bad 

actors accountable for violating the law. 

That is the work this subcommittee will pursue. And I hope we 

can perform with you in this effort. 

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

[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. During today’s hearing, we will take a close look at some recent regulatory and enforcement actions of the Mine Safety and Health Administration. 

I wish to thank Secretary Main for the time he has taken to be with us today. 

Your knowledge and experience on these matters is extremely valuable, and we appreciate your efforts as well as those of the administration staff. 

Mine safety is a shared goal that continues to develop and improve. In 1969, the 

Coal Mine Safety and Health Act was enacted to provide a comprehensive legal 

framework to protect workers in aboveground and underground mines. In 1977, 

Congress passed the Federal Mine Safety and Health Act which created MSHA. 

The Mine Act established several important safety requirements, including a 

mandate that inspections must occur twice a year for surface mines and four times 

a year for underground mines. Additionally, coal miners must perform their own 

safety inspections at the start of each shift, as well as weekly and monthly safety 

inspections. 

Congress has taken steps in recent years to strengthen mine safety laws, most 

notably with the 2006 MINER Act. The strong, bipartisan efforts in 2006 required 

MSHA to conduct an overhaul of its penalty policies and also led to increased penalties for the worst offenders. 

Despite the progress that has been made, more must be done to protect these 

workers. Last April’s tragedy at Upper Big Branch Mine forever changed the lives 

of the families and community of Montcoal, West Virginia. This horrific event will 

forever serve as a stark reminder of the need to remain vigilant in providing strong 

and effective safety protections for America’s miners. 

Although nearly a year has passed, several investigations continue to search for 

the cause of our nation’s worst mining tragedy in four decades. We are all awaiting 

the findings of these investigations. It is vital we allow the results of the investigations to shed light on this crisis so we can pursue the right reforms in a responsible 

way. 

I know many of us are frustrated by the delay and anxious to act. I recognize a 

sense of urgency to move forward with mine safety reform. Chairman Kline and I 

share that urgency. That is why we are here today. 

Improving miner safety must consider the efforts already underway within 

MSHA. Since the explosion at Upper Big Branch, MSHA has developed a series of 

reforms geared toward enhancing mine safety through existing law. These initiatives include changes to the pattern of violations process, an emergency temporary 

standard on rock dusting, and new regulations on miner exposure to coal dust. 

As with any policy proposal, questions and concerns remain. However, I am encouraged the administration is taking advantage of the tools already at its disposal 

in an effort to strengthen safety for miners. I look forward to learning more, Secretary Main, about these and other efforts underway at the administration. 

We have learned in recent years that the cause of worker safety is best advanced 

when we work together. We have a responsibility to pursue commonsense rules that 

protect workers and hold bad actors accountable for violating the law. That is the 

work this subcommittee will pursue and I look forward to collaborating with my colleagues on this effort. 

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

Ms. WOOLSEY. Chairman Walberg, thank you for holding this 

timely hearing on mine safety. I also want to welcome Congressman Nick Rahall, who is on the panel today, who you have agreed 
4 

should have a voice because he represents West Virginia’s 3rd District where Upper Big Branch is located. 

He has been there for the families since the day of the explosion, 

helping them every step of the way. Congressman Rahall is from 

the heart of coal country and a recognized leader on mine safety. 

And we are honored to have him here today, along with Congresswoman Capito. 

Last year, Mr. Chairman, the committee held three hearings on 

mine safety. In February, we examined causes for and solutions to 

the growing backlog of mine safety appeals, which has impaired 

MSHA’s ability to act in a timely manner against chronic violators. 

Six weeks later on April 5, 2010, a massive explosion ripped 

through the Upper Big Branch mine, killing 29 miners over a twomile area. It was the largest United States coal mine disaster in 

the past 40 years. 

Six weeks after that, this subcommittee traveled to Beckley, 

West Virginia to hear from the miners and the families of the victims. Witnesses testified about the lack of ventilation. They testified about coal dust accumulation so thick you couldn’t see in front 

of your hand, a long wall mining machine that operated with a ball 

of flame on its cutting head, a culture of retribution against anyone 

who raised safety concerns and a system of advanced notice that 

tipped off underground miners to correct violations before MSHA 

inspectors could get underground. 

A gentleman, Gary Quarles, was one of our witnesses and testified that when MSHA came on-site, staff radioed miners underground to warn them, ‘‘We have got a man on the property,’’ which 

was code to correct the condition or direct the inspector’s attention 

away from deficiencies. Mr. Quarles’ testimony was validated by 

the U.S. Attorney’s recent indictment charging Massey’s security 

director with allegedly making false statements about his practice 

of training and directing guards to provide advanced notice of mine 

inspection. 

Mr. Chairman, I would like to include that indictment in the 

record for this hearing. 

[The information follows:] 
5 
6 
7 
8 
9 
10 
11 
12 

Mr. WALBERG. Without objection, it will be included. 

Ms. WOOLSEY. This committee reviewed legislation 7 weeks later, 

which included the Labor Department’s recommendations and the 

intelligence we gathered in Beckley. As this bill was marked up, it 

further captured views of academics, industry and labor. 

It authorizes MSHA to issue subpoenas in investigations and inspections. It mandates the temporary closure of mines with a pattern of significant violations until they improve their safety management systems. It makes the sanction under pattern of violations 

more remedial and less punitive. 

It requires chronic violators who are placed on pattern of violations to sustain improved safety performance for 1 year instead of 
13 

90 days under current law. It updates underground coal mine safety standards, makes it a first instance felony to knowingly violate 

a safety standard which exposes a miner to significant risk or injury or death, strengthens whistleblower protections and deters legislation designed only to delay enforcement. 

Mr. Chairman, this is a detailed list, but it is absolutely necessary if we are going to adequately protect miners who are being 

considered cogs in a wheel to make the energy and metals our nation needs. Instead, they are the mothers, they are the fathers, the 

community and church leaders, little league coaches and youth 

mentors. It our moral obligation, Mr. Chairman, to make sure our 

laws protect and value their lives. 

It is also an imperative that we bring MSHA and OSHA into the 

21st century. Mr. Chairman, this committee visited the Coalburg 

mine in West Virginia. And we learned firsthand of the hazards 

and protections needed by miners. It was overwhelming. 

We need this committee, under your leadership to go down in a 

mine and get the total feel of what this is all about because it is 

pretty overwhelming. And if you didn’t think you were going to be 

protected, you would have your heart in your throat every minute 

that you were doing the work. So I hope that this year we can find 

common ground to advance legislation that the Department of 

Labor has requested and legislation that our nation’s miners deserve. 

With that, I yield back. 

[The statement of Ms. Woolsey follows:] 

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

Subcommittee on Workforce Protections 

Chairman Walberg, thank you for holding this timely hearing on mine safety. 

I also want to welcome Congressman Nick Rahall, who represents West Virginia’s 

3rd District where Upper Big Branch is located. He has been there for the families 

since the day of the explosion, helping them every step of the way. 

He is from the heart of coal country and a recognized leader on mine safety, and 

we are honored to have him here today along with Congresswoman Capito. 

Last year, the Committee held 3 hearings on mine safety. In February we examined causes for and solutions to the growing backlog of mine safety appeals, which 

has impaired MSHA’s ability to act in a timely manner against chronic violators. 

Six weeks later, on April 5, 2010, a massive explosion ripped through the Upper 

Big Branch Mine, killing 29 miners over a 2 mile area. It was the largest U.S. coal 

mine disaster in the past 40 years. 

Six weeks after that, this subcommittee traveled to Beckley, West Virginia to hear 

from miners and families of victims. 

Witnesses testified about: 

• the lack of ventilation; 

• coal dust accumulations so thick you couldn’t see in front of your hand; 

• a long wall mining machine that operated with a ball of flame on its cutting 

head; 

• a culture of retribution against anyone who raised safety concerns; 

• and a system of advance notice that tipped off underground miners to correct 

violations before 

MSHA inspectors could get underground. 

Gary Quarles (Kwor-els) testified that when MSHA came on site, staff radioed 

miners underground to warn: ‘‘we’ve got a man on the property’’...which was code 

for correct the condition or direct the inspector’s attention away from deficiencies. 

Mr. Quarles (Kwor-els) testimony was validated by the U.S. Attorney’s recent indictment charging Massey’s security director with allegedly making false statements 

about his practice of training and directing guards to provide advance notice of mine 

inspections. Mr. Chairman, I would like to include that indictment in the record for 

this hearing. 
14 

This Committee reviewed legislation seven weeks later which included the Labor 

Department’s recommendations and the intelligence we gathered in Beckley. As this 

bill was marked up, it further captured views of academics, industry and labor. 

It: 

• authorizes MSHA to issue subpoenas in investigations and inspections; 

• mandates the temporary closure of mines with a Pattern of significant Violations until they improve their safety management systems; 

• makes the sanction under Pattern of Violations more remedial and less punitive; 

• requires chronic violators who are placed on pattern of violations to sustain improved safety performance for 1 year, instead of 90 days under current law; 

• updates underground coal mine safety standards; 

• makes it a first instance felony to knowingly violate a safety standard which 

exposes a miner to significant risk of injury or death; 

• strengthens whistleblower protections; and 

• deters litigation designed only to delay enforcement. 

Mr. Chairman, this is a detailed list, but it is absolutely necessary if we are going 

to adequately protect miners. Miners are not simply cogs in a wheel to make the 

energy and metals our nation needs. They are mothers and fathers, community and 

church leaders, Little League coaches and youth mentors. It is our moral obligation 

to make sure our laws protect and value their lives. 

I hope that this year we can find common ground to advance legislation that the 

Department of Labor has requested and our nation’s miners deserve. 

Mr. WALBERG. 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 hearing record. 

Ms. WOOLSEY. Without objection. 

Mr. WALBERG. It is now my pleasure to introduce our distinguished witness. The Honorable Joseph A. Main was confirmed as 

Assistant Secretary of Labor for Mine Safety and Health on October 21, 2009. Mr. Main has been a coal miner, a mine safety advocate for over 40 years. 

Mr. Main worked for the United Mine Workers of America in 

various positions from 1974 to 2002, including 22 years as the administrator of the UMWA’s occupational health and safety department. Prior to his nomination, Mr. Main worked as a mine safety 

consultant. 

Welcome, Mr. Secretary. You are now recognized to provide your 

testimony. And, as is the custom here with a director being in the 

place and you being our only witness, we will afford you a greater 

latitude for your time and testimony. But please leave us time as 

well for questioning. Thank you. 

STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT 

SECRETARY, MINE SAFETY AND HEALTH ADMINISTRATION 

Mr. MAIN. Thank you, Mr. Chairman, Representative Woolsey, 

members of the subcommittee, Congressman Rahall. I do appreciate the opportunity to be here today to update you on mine safety 

and health, report on MSHA’s actions since the April 5th explosion 

at the Upper Big Branch mine, that tragically took the lives of 29 

miners, and discuss why, despite MSHA’s extraordinary efforts in 

the wake of the Upper Big Branch disaster, that legislation is still 

needed to fully protect our nation’s miners. 
15 

Since I last testified before this committee, we have made significant progress in MSHA’s investigation into the Upper Big Branch 

explosion. The underground portion of the investigation, which has 

been extensive, is nearing completion. 

Based on the evidence we have gathered so far, it appears that 

a low volume of methane or methane fuel from natural gas provided the fuel for the initial ignition on or near the face of the tailgate side of the long wall shear or cutting machine. Small methane 

ignitions are not uncommon in coal mines, but when proper safety 

measures are followed, these ignitions are generally controlled or 

extinguished. Our preliminary analysis show, however, that at 

Upper Big Branch, the small ignition was not contained or quickly 

extinguished. Instead, a small methane ignition transitioned into a 

massive explosion fueled by an accumulation of coal dust that propagated the blast. 

While it is likely to be several months before MSHA can provide 

a final report on the cause or causes of the Upper Big Branch disaster, we know already that explosions in mines are preventable 

and that a workplace culture which puts health and safety first 

will save lives and prevent tragedies. 

I have a deep respect for those who choose mining as a career. 

That is the occupation I chose when I was 18 years old. Mining is 

critically important to our economy. And I believe that a commitment to safety is fully compatible with a thriving industry. 

MSHA has worked hard in the wake of the Upper Big Branch 

tragedy to encourage operators to live up to their obligations to 

provide a safe and healthful workplace. We are using every tool at 

our disposal to make that happen. 

One of our most effective enforcement tools has been our ‘‘impact 

inspections’’. Since April of 2010, MSHA has conducted 220 impact 

inspections at mines with special concerns. We have conducted 

these impact inspections at times off-shift, taking hold of phone 

lines to prevent advanced notice and covering key parts of the mine 

as quickly as we can before hazards are—can be hidden or covered 

up. 

Another important post-Upper Big Branch enforcement action 

was MSHA’s decision for the first time ever to seek federal court 

injunction for a pattern of violation. Shortly after we filed the action, the mine operator announced it was permanently closing the 

mine and agreed to a court order that ensured the safety of the 

miners during the shutdown and protected the livelihood of the displaced miners. 

We have also taken important actions to improve the broken pattern of violations program. We adopted new screening criteria, used 

those criteria to put 14 mines on a potential pattern of violation 

and published a proposed rule which would address flaws in the 

current rule to meet the intent of the statute. MSHA has taken a 

number of other steps in the wake of the Upper Big Branch tragedy, including accelerating additional regulations such as the emergency temporary standard on rock dust and providing targeted 

compliance guidance. 

Upper Big Branch also highlighted the importance of addressing 

the growing backlog at the Federal Mine Safety and Health Review 
16 

Commission. And we are taking several actions to attack that problem. 

MSHA cannot be in every mine, and mine operators must find 

and fix hazardous conditions, whether MSHA is there or not. I believe that many mine operators want to do this and want to run 

safe mines. In order to assist mine operators, MSHA has undertaken extraordinary education and outreach efforts. 

I have traveled the country speaking to miners, operators, mining organizations and associations and listening to their ideas and 

concerns. We have been forming alliances with industry stakeholders. We have been working together with the industry and 

miners to improve consistency in enforcement of mining standards 

and implementing new programs such as the ‘‘Rules-to-Live-By’’ 

that targets the most common mining deaths and ‘‘Safety Pro-ina-Box’’, a valuable Web-based compliance resource. And I am committed to continuing those partnerships. 

This subcommittee has a long history of standing up for the nation’s miners. It has never subscribed to the myth that mining fatalities are an inevitable aspect of the business. I hope that you 

will again stand up for miners and pass new mine safety legislation. It is time to move such legislation. 

Since Upper Big Branch, we have learned that there are systemic flaws in the law that only Congress can fix. And the administration supports legislation that gives MSHA the enforcement tools 

it needs to ensure that all mine operators live up to their legal and 

moral responsibility to provide a safe and healthful workplace for 

all miners. 

Let me mention just a few of the areas, among others, that merits your attention. There is only so much we can do through regulations. Second, MSHA should revise MSHA’s injunction of authority. 

We need to fix the broken pattern of violations system. We have 

used the provision and learned that the process may be slower 

than needed to protect miners. That is in regard to the ‘‘section 

108’’ injunctive action that we have just initiated for the first time. 

New legislation should provide us sufficient authority to act as 

soon as we believe protecting miners’ safety and health requires 

immediate action. 

Third, legislation should strengthen the criminal provisions of 

the Mine Act. No mine operator should be risking the lives of its 

workers by cutting corners on health and safety. But for those who 

knowingly engage in such practices, we need to send them a clear 

message that their actions will not be tolerated. 

Finally, new legislation must ensure miners are fully protected 

from retaliation. Miners know best the conditions in their mines. 

But as some surviving miners and family members have reported, 

some miners keep critical information to themselves because they 

fear they will lose their jobs of they speak up. 

I look forward to working with the committee to find the best 

way to accomplish our shared goal of providing our nation’s miners 

the safety and health protections that they deserve. With that, I 

thank you very much. 

[The statement of Mr. Main follows:] 
17 

Prepared Statement of Hon. Joseph A. Main, Assistant Secretary of Labor, 

Mine Safety and Health Administration 

Chairman Walberg, Ranking Member Woolsey, and Members of the Subcommittee: 

I appreciate the opportunity to appear here today on behalf of the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) to update you on 

mine safety and health, and report on the actions we have taken since the April 

5, 2010 explosion at the Upper Big Branch (UBB) mine in West Virginia that needlessly took the lives of 29 miners. That accident was the worst mining disaster since 

the creation of MSHA by the Mine Act and the deadliest coal mine disaster this nation has experienced in forty years. The need to rethink how we approach mine safety and health to protect miners took on a new urgency for all of us following that 

disaster. I also want to discuss why, despite MSHA’s extraordinary efforts in the 

wake of the UBB disaster, legislation is still needed to fully protect our nation’s 

miners. The safety and health of those who work in the mines in this country is 

of great concern to President Obama, Secretary of Labor, Hilda Solis, and me. The 

Secretary has articulated a forward-looking vision of assuring ‘‘good jobs’’ for every 

worker in the United States, which includes safe and healthy workplaces, particularly in high-risk industries, and a voice in the workplace. At MSHA, we are guided 

by that vision. 

I arrived at MSHA over a year ago with a clear purpose—to implement and enforce the nation’s mine safety laws and improve health and safety conditions in the 

nation’s mines so miners in this country can go to work, do their jobs, and return 

home to their families safe and healthy at the end of every shift. Having been involved in mining since the age of 18, I have a deep respect for those who choose 

mining as a career. I have spent most of my life with miners, mine operators and 

mine safety professionals. I think we can all agree that mining is critically important to our economy, and I believe most understand our collective responsibility to 

ensure that effective health and safety standards are in place and are followed to 

prevent injury, illnesses and death. 

I know that it is possible for a mine to be a safe place to work for miners and 

a profitable business for operators. Most of the industry shares this belief and make 

the commitment to safety because it is not only the right thing to do, but the smart 

thing to do as well. Injuries, illnesses, and fatalities have for too long taken a toll 

on the mining industry and its workers. 

In addition, at MSHA, we are concerned with the economic and technological feasibility of our regulations and the Mine Act requires us to take that into consideration when developing regulations. We also understand that MSHA’s effective enforcement of the law should create a level playing field, so that operators who play 

by the rules and provide safe mine conditions do not have to compete against operators that cut corners on safety. 

MSHA will continue to partner with the industry to ensure that miners are safe 

and healthy and that the industry and those who derive their livelihood from the 

industry—especially those that play by the rules—continue to thrive. 

Upper Big Branch Investigation 

Since I last testified before this Committee in July 2010, we have made significant 

progress in MSHA’s investigation into the Upper Big Branch explosion. As many of 

you are new to the Committee, I would like first to provide a brief overview of the 

investigation and then provide an update on what we have learned so far. 

The investigation team was named just after the explosion, but there was a delay 

in getting the team members underground due to unstable conditions and the need 

to provide a safe working environment for the investigators. The investigative team 

began its physical inspection at the end of June 2010. The underground investigation—which has been extensive—is nearing completion. At the time of my July 2010 

testimony before the Committee, we had conducted approximately 100 interviews. 

Now, we have held over 260 witness interviews. MSHA has dedicated 108 enforcement personnel to the investigation, which includes 10 mine dust survey teams, 7 

mapping teams, 3 electrical teams, 1 ventilation team, 1 geology team, 1 flames and 

forces team, 1 evidence collection team, and 1 inspection activities team. In addition, 

45 technical support personnel are performing testing and other technical activities 

related to the investigation. In July, we had just begun our physical investigation, 

but now our investigative teams have combed through every inch of the accessible 

parts of the mine. To date, over 2,000 pieces of evidence have been collected and 

tested, including equipment, and gas, dust and other samples. While there still is 

more work to be done, MSHA is committed to completing the investigation in as 

timely a manner as possible. 
18 

I want to note for the Subcommittee that while MSHA is investigating the accident with the purpose of understanding what caused the accident and working to 

prevent future, similar accidents, the Department of Justice (DOJ) also opened its 

own investigation into possible criminal wrongdoing almost immediately after the 

explosion. The United States Attorney for the Southern District of West Virginia requested that MSHA delay its announced public hearings and the release of witness 

transcripts so as not to jeopardize the separate criminal inquiry by DOJ. MSHA is 

honoring that request in recognition of the President’s instruction for the Department of Labor to work with DOJ to ensure that every tool in the federal government 

is available in the investigation of the accident. 

Since the outset we have conducted the investigation in as transparent a manner 

as possible. MSHA has established an ‘‘Upper Big Branch Single Source Page’’ on 

our website at: http://www.msha.gov/PerformanceCoal/PerformanceCoal.asp to 

keep the public informed about the accident. We post as much information as we 

can on that site. 

In addition, we have honored our commitment to the families to keep them as informed as we can about the findings of the accident investigation team to date. To 

the extent that we have been able to release information, my colleagues and I have 

met with the families of the victims on a number of occasions to bring them up to 

date on the status of the investigation. The last family briefing was on January 18, 

2011, when we met with the families for almost four hours. The Solicitor of Labor, 

M. Patricia Smith, joined us at this briefing. In addition, consistent with Section 7 

of the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), 

MSHA family liaisons are in continuous contact with the families. 

Finally, we have held regular briefings for the Committee leadership and your 

staff on the status of the investigation and our preliminary findings. 

When I testified in July, there was little I could tell you about what caused the 

explosion at Upper Big Branch. In the intervening months, we have learned a tremendous amount. Based on the evidence that the team has gathered to date, it appears that a low volume of methane and/or methane fuel from natural gas provided 

the fuel for the initial ignition on or near the face of the tailgate side of the longwall 

shearer, or cutting machine. Small methane ignitions are not uncommon in coal 

mines, but when proper safety measures are followed, these ignitions are generally 

controlled or extinguished by proper ventilation and safety equipment on the 

longwall shearer, such as mining bits and water sprayers. 

The evidence to date shows, however, that at Upper Big Branch, the small ignition was not contained or quickly extinguished. The analysis also indicates that a 

small methane ignition transitioned into a massive explosion, fueled by an accumulation of coal dust that propagated the blast. 

While the investigation is not complete, and it is likely to be several months before MSHA is able to issue a report, we do know already that explosions in mines 

are preventable. Most importantly, we know that a workplace culture, which puts 

health and safety first, will save lives and prevent tragedy. 

MSHA’s Actions after Upper Big Branch 

The tragic events of April 5th at the Upper Big Branch mine changed the lives 

of many people—the miners’ families, their communities, miners around the country, and those of us at the Department of Labor dedicated to mine safety. When the 

Secretary and I sat with the families on those fateful days following the explosion, 

waiting for news of their loved ones, we committed to them that MSHA would act 

boldly to prevent another similar disaster. President Obama reiterated that promise 

when shortly after the accident he told the nation that ‘‘we owe [those who perished 

in the UBB disaster] more than prayers. We owe them action. We owe them accountability.’’ 

The MSHA team has pulled together and worked hard to make good on the President’s promise. We are using every tool at our disposal, including ramped-up enforcement, targeted upgrades in our regulations, and education and outreach. 

One of our most effective enforcement tools has been our impact inspections. After 

the disaster at the Upper Big Branch mine, MSHA began to conduct strategic ‘‘impact’’ inspections at coal and metal and nonmetal mines that needed greater attention. From April 2010 through January 2011, MSHA has conducted 220 ‘‘impact’’ 

inspections at mines with special concerns. These inspections are ongoing. Targeted 

mines are those that could be at risk of explosion, mines with poor compliance histories or histories of accidents or fatalities, or mines with other warning signs, such 

as efforts to cover up violations, hotline complaints or mines with poor examination 

procedures. MSHA has also conducted inspections at mines with recurring problems 

dealing with adverse physical conditions or that have a poor safety culture. From 

testimony at the field hearing conducted by the Education and Workforce Com-
19 

mittee in May 2010, we heard the different ways in which operators would use their 

knowledge of our inspection methods to hide the violations they were committing. 

Therefore, MSHA has conducted these impact inspections in a way that has shaken 

up even the most recalcitrant operators. MSHA has shown up at their mines during 

‘‘off hours,’’ such as evenings and weekends. In some cases, MSHA has taken hold 

of the mines’ phone lines upon arrival to prevent unscrupulous operators from giving advance notice of the inspectors’ presence at the mine. Our inspectors have gone 

into those mines in force, with sufficient personnel to cover the key parts of the 

mine quickly before hazards could be hidden or covered up. 

The results of the impact inspections have been significant. MSHA inspectors 

have issued more than 4,100 citations and 380 orders for violations of mine safety 

and health laws, rules and regulations during these targeted inspections—and miners are safer because we conducted those inspections. Some of the conditions and 

violations MSHA found during ‘‘impact’’ inspections are quite disturbing. For example, in July 2010, MSHA inspectors commandeered company phones during the 

evening shift at a mine in Claiborne County, Tennessee, to prevent surface personnel from notifying workers underground of MSHA’s presence on the property. Inspectors found numerous ventilation, roof support, and accumulation of combustible 

materials violations. These types of conditions potentially expose miners to mine explosions and black lung disease. The operator was also mining into an area without 

necessary roof support, placing miners at further risk from roof falls. In all, MSHA 

issued 27 citations and 11 orders as a result of that inspection. 

Unfortunately, the mine operator did not get the message. MSHA has now conducted four ‘‘impact’’ inspections at the mine, based on its ongoing compliance problems and apparent disregard for the law, and in November 2010, the mine was 

issued a potential pattern of violations notice. During the December 2010 ‘‘impact’’ 

inspection—after the potential pattern of violations letter went out—inspectors 

issued four very serious orders for accumulations of combustible coal dust of up to 

24 inches in depth covering extensive areas where miners work and travel, and for 

not properly maintaining a lifeline in the mine’s secondary escapeway. Coal and 

rock dust on the lifeline and reflective markers would have made it more difficult 

for miners to effectively escape to the surface in the case of an emergency. During 

the next regular safety and health inspection at the mine on January 19, 2011, 

MSHA found more violations for accumulations of combustible materials, not maintaining proper clearance on a beltline, and inadequately supported ribs—these violations required equipment to be shut down and effectively closed the mine to production. 

During another ‘‘impact’’ inspection in September 2010 at a mine in Boone County, West Virginia, MSHA inspectors arrived in the middle of the evening shift and 

prevented calls to warn those working underground. Inspectors found that the mine 

was making illegal deep cuts into the coal seam. In addition, many areas of the 

working section were without adequate ventilation while these excessive cuts were 

being taken, exposing miners to the risk of explosion and black lung. The inspection 

revealed that air readings were not being taken during the work shift and that mine 

ventilation was being short-circuited. In one particular area, suspended coal dust 

was so thick it was difficult to see the massive continuous mining machine in operation nearby. Again, these are conditions that can also result in explosions and 

cause black lung. The inspector issued 11 closure orders during that inspection. 

Another important post-UBB enforcement action was MSHA’s decision—for the 

first time since the passage of the Mine Act—to seek a federal court injunction 

under the Mine Act’s ‘‘pattern of violation’’ injunction section. We filed the injunction action against Massey Energy’s Freedom Energy Mining Company’s Number 1 

mine located in Pike County, Kentucky. The mine had a pattern of violations of 

mandatory safety and health standards, which in our view, constituted a continuing 

hazard to the health and safety of the miners working at the mine. From July 2008 

to June 2010, MSHA had issued 1,952 citations and 81 orders to the company for 

violating critical standards including improper ventilation, failure to support the 

mine roof, failure to clean up combustible materials, failure to maintain electrical 

equipment, and failure to conduct the necessary examination of work areas. 

Shortly after we filed the action, the operator announced it was permanently closing its mine and moving the miners to other mines it owned in the area. It did agree 

to a court order that ensured the safety of miners during the shutdown process and 

protected the livelihood of the displaced miners. 

MSHA has also evaluated other mines for possible injunctive relief, and we will 

continue to use this remedy when mines are engaged in a pattern of violations and 

miners are faced with continuing hazards to their safety and health. Yet despite a 

successful result, the case against Freedom Energy demonstrates that injunctive 

court actions will not always proceed quickly or result in instant relief. 
20 

MSHA has also issued new enforcement policies and alert bulletins addressing 

specific hazards or problems to ensure that miners and mine operators understand 

important enforcement policies. We have addressed topics such as the prohibition 

on advance notice of MSHA inspections, mine ventilation requirements that protect 

against mine explosions, and the right of miners to report hazards without being 

subject to retaliation. 

I have said that the pattern of violations, or POV process, is broken and MSHA 

is committed to fixing it. In the provision’s 33-year-old history, no mine has ever 

been subject to the full measure of the law contemplated by Congress. While we 

were reviewing the POV process prior to the UBB disaster, the incident heightened 

the urgency of moving forward with reforms. Therefore, in October 2010, we put 

new screening criteria in place for the pattern of violations or POV program. This 

was a critical first step in reforming the current POV program to give the Agency 

an effective enforcement tool to address mines that repeatedly violate safety and 

health standards. Notifications of potential pattern of violations have been sent to 

14 mines using these new screening criteria and procedures, with additional mines 

still under review for potential pattern of violation actions. 

The next step in fixing the broken POV program was the proposed revisions to 

the regulations. As promised, on February 2, 2011, we published a proposed rule 

on POV, which would address flaws in the current rule and reflect the intent of 

Congress when it wrote the POV provisions, such as not limiting MSHA to looking 

at enforcement actions that have resulted in final orders and eliminating the potential POV process. 

MSHA also accelerated action on several other regulatory actions after UBB. In 

September 2010, MSHA developed and issued an Emergency Temporary Standard 

for increasing the incombustible content of combined coal dust, rock dust, and other 

dust in coal mines to minimize the potential for coal dust explosions. This ETS is 

based on research findings and recommendations by the National Institute for Occupational Safety and Health (NIOSH), within the Department of Health and Human 

Services. As discussed above, we strongly believe that coal dust played a role in the 

UBB disaster. 

The UBB disaster highlighted the need to ensure that mine operators take seriously their obligation to find and fix the hazards in their mines, even when MSHA 

is not looking over their shoulders. In December 2010, therefore, MSHA published 

a proposed rule that would revise its requirements for pre-shift, on-shift, supplemental and weekly examinations of underground coal mines. The proposed rule 

would require that operators identify and correct violations of mandatory health or 

safety standards and review with mine examiners on a quarterly basis all citations 

and orders issued in areas where examinations are required. If implemented, this 

rule would reinstate requirements in place for about 20 years following the passage 

of the 1969 Mine Act. 

The UBB disaster also enhanced the urgency of our need to address the backlog 

of cases at the Federal Mine Safety and Health Review Commission (FMSHRC). We 

have taken a number of actions to attack this problem. First, we are being good 

stewards of the supplemental appropriations that Congress provided for the Department and FMSHRC to reduce the backlog. The extra resources are helping us to 

resolve cases, and we continue to explore ways in which we can reduce the number 

of contested cases. 

Last fall, I also launched a pre-contest conferencing pilot program in 3 MSHA districts. The pilot program allows the mining industry to meet on the local level with 

MSHA to resolve differences over citations and orders before they become matters 

of litigation and add to the backlog of contested cases. We are currently assessing 

the pilot program to determine how we can improve consistency and implement the 

conferencing program throughout MSHA to provide opportunities to resolve disputes 

before litigation is necessary. Just last month, MSHA held a stakeholder meeting 

with representatives from the coal and metal and non-metal industries and labor 

to discuss the pilot project and share ideas for an effective pre-contest process. Although it is too early to see the impact, I believe an effective pre-contest conference 

program could be an important tool in resolving cases. 

Finally, the UBB disaster reinforced my concerns about MSHA’s mine emergency 

response capabilities. I had already ordered a review to identify gaps in the system 

before UBB. Sadly, I saw many of those gaps first hand at the UBB site, such as 

inadequate communications and emergency equipment coordination. 

MSHA has made major progress in this area. MSHA’s new state-of-the art mobile 

command center based in Pittsburgh is in service and nearing full operational capability. The center will improve MSHA’s capacity to provide better communications, 

advice and guidance during a mine rescue and recovery. At the UBB site, I had difficulty communicating with the Department’s headquarters and even with MSHA 
21 

emergency response staff who were in the vicinity of the mine. Our new center 

should help correct these difficulties. In addition, MSHA is updating its technology, 

developing standard operating procedures and implementing more comprehensive 

command and control training for the MSHA district personnel that would be responding to mine emergencies. 

As a result of these improvements, we are better able to respond to and manage 

mine emergencies, but as MSHA continues its thorough review of emergency plans 

and procedures to identify and fix gaps in the system, we know that more needs 

to be done. For example, some mine operators do not have available mine emergency 

equipment and are not prepared to quickly respond to emergencies. We are working 

with the mining industry, state agencies, drilling companies and others to identify 

areas for improvement in overall mine emergency response and equipment needs. 

Something that should not go unnoticed is that the 2006 MINER Act greatly enhanced our mine rescue response to the Upper Big Branch tragedy. The MINER Act 

improved the number, availability of and quality of training of mine rescue teams. 

I can tell you that I and the other mine emergency personnel coordinating the rescue efforts at Upper Big Branch greatly appreciated this improvement in mine rescue team strength and preparedness. 

Education, Outreach and Compliance Assistance 

As I said at the outset, I believe that most mine operators want to run safe mines. 

In order to reach and assist these mine operators, MSHA has ramped up its education, compliance assistance, and outreach. 

First, we have made it a priority to educate mine operators, contractors, miners, 

trainers and others about how to prevent injuries and fatalities in mines. Let’s remember that it was not just the Upper Big Branch disaster that led to mining 

deaths in 2010. In total, 71 miners died on the job last year, compared to 34 in 

2009. And most of these non-UBB related deaths are the types that are recurring 

in the mining industry. I have spoken to members of the mining industry and those 

who train miners about the causes of these accidents and the practices that can prevent them. We know how to prevent these deaths, but more must be done to put 

that knowledge to work. 

One way to put that knowledge to work is to ensure that the industry is more 

proactive about safety. Operators should have effective safety and health management systems in place, since these are the best vehicles for establishing a culture 

of safety in mining workplaces. These systems should be developed with everyone 

in the company—from the CEO to those working in the mine. In October 2010, 

MSHA held three public meetings, which highlighted the importance of safety and 

health management systems in our nation’s mines. 

We also have had several successful, targeted education campaigns last year. In 

early 2010, we launched a new program called ‘‘Rules to Live By.’’ This is a fatality 

prevention initiative focusing on 13 frequently-cited standards in metal and 

nonmetal mining and 11 frequently-cited standards in coal mining that most commonly caused or contributed to fatal accidents over a 10-year period. This effort 

combines education and outreach on the front end, followed by enhanced enforcement by MSHA. In November 2010, we initiated a second phase of ‘‘Rules to Live 

By’’ focusing on 9 coal safety standards aimed at preventing other catastrophic accidents. We have posted information on the ‘‘Rules to Live By’’ initiative and the 

training module used to instruct inspectors on how to handle enforcement of the targeted standards on the MSHA website to allow the mining industry to have access 

to the training. This will also improve our consistency in enforcing standards. 

In December 2010, we published a safety alert called ‘‘Watch Out!’’ to draw attention to the potential dangers to miners posed by shuttle cars, scoops, continuous 

mining machines and other equipment in underground coal mines. Seventy underground coal miners have died from being crushed or struck by this equipment since 

1984—6 of them in 2010 alone. Without question, it is time to act to prevent these 

needless deaths. A solution to prevent these deaths is the use of proximity detection 

technology, which can warn miners when they are too close to the mining equipment. The technology can also shut down the machine before there is any harm to 

miners. Proximity detection systems are already used in South Africa, and MSHA 

has approved 3 systems for use in U.S. mines. MSHA plans to issue an Emergency 

Temporary Standard requiring these detection systems on certain kinds of mining 

machines. 

For metal and nonmetal mines, many of the citations MSHA issues are for violations of equipment guarding. As a result, in 2010, MSHA published ‘‘Guarding Conveyor Belts at Metal and Nonmetal Mines,’’ a photo-illustrated PowerPoint guide 

that provides detailed compliance information. The guide helps the metal and 

nonmetal mining industry meet the requirements of MSHA’s guarding standards on 
22 

conveyor belts, and enhances awareness of guarding compliance and miner protection for both industry stakeholders and MSHA’s metal and nonmetal enforcement 

personnel. It supplements existing guarding guidance contained in ‘‘MSHA’s Guide 

to Guarding Equipment,’’ and MSHA’s existing program policy manual. The new 

guide was piloted through several state aggregate groups and distributed with the 

support of the National Stone, Sand and Gravel Association (NSSGA). 

Also in 2010, we initiated a resource page on our website for the metal and 

nonmetal industry that includes a ‘‘Compliance and Updates’’ section. And just this 

year, MSHA released ‘‘Safety Pro in a Box,’’ a resource intended to provide meaningful compliance assistance to small and new operators in the aggregates industry. 

This safety tool box, which provides helpful compliance guides, was suggested by the 

NSSGA and developed with the association’s assistance. 

In addition, mine operators and contractors need to train miners and mine supervisors on the conditions that lead to deaths and injuries, as well as on measures 

to prevent them. This is an industry in transition as new miners are replacing the 

aging workforce. MSHA is working with the mining industry to help ensure that 

education, training and knowledge transfer keeps pace with that transition and does 

not undercut health and safety gains made over the years. 

Moreover, to promote better understanding of the mining industry’s concerns with 

MSHA’s enforcement program and to improve mine safety and health, MSHA has 

entered into alliances with a number of mining associations, including the NSSGA, 

the Industrial Minerals Association-North America and the Portland Cement Association. MSHA’s Administrator for Metal and Nonmetal and I have met frequently 

with these groups and with many state aggregate associations across the country 

about their concerns. In addition, a joint technical committee was formed between 

MSHA and the NSSGA to develop compliance assistance materials. MSHA followed 

up on this committee’s work by issuing Procedural Instruction Letters (PIL) and 

Program Information Bulletins (PIB) to advise MSHA inspectors and the mining industry on compliance. 

MSHA is also teaming up with the Interstate Mining Compact Commission, an 

organization which represents state mining agencies, to coordinate a federal and 

state effort that promotes a culture of safety and encourages mine operators to live 

up to their responsibilities to provide safe and healthful workplaces, to fully comply 

with state and federal requirements and to provide effective training for their miners. 

MSHA also meets on a periodic basis with mine operators to discuss their specific 

concerns. On February 16, 2011, MSHA held stakeholder meetings with representatives of the coal and metal and non-metal industries, and labor. One concern we’ve 

heard from the industry is about the consistency in the citations issued by MSHA’s 

inspectors. Consequently, we’ve taken several steps to address it, including a review 

of enforcement actions to ensure that MSHA policies and procedures are followed; 

a review of agency inspection procedures; field inspection audits to improve inspections; training of CLR representatives; and mandatory, comprehensive, refresher 

training for all inspectors. In 2010, we developed a new two-week training program 

for all MSHA field office supervisors to improve the quality and consistency of enforcement. As previously noted, we are working on establishing an effective pre-contest citation and order conference procedure that will provide earlier opportunities 

to resolve disputes. We also hope that the conferences will serve as learning experiences for both operators and MSHA personnel so that discrepancies in citations can 

be corrected going forward. 

Eradicating Black Lung 

On the health front, MSHA continues to move forward on its ‘‘End Black Lung— 

Act Now!’’ initiative, which is a comprehensive strategy to fulfill the promise made 

40 years ago with the passage of the 1969 Federal Coal Mine Health and Safety 

Act to eradicate Black Lung. According to NIOSH, in the past decade over 10,000 

miners have died from Black Lung disease. Black Lung still kills hundreds of former 

coal miners each year and severely impairs the lives of many more; there are alarming indications that it is on the rise, even in younger miners. 

In December 2009, we launched Phase I of the initiative, which includes education, outreach and enforcement. In October 2010, we launched Phase II by publishing a proposed rule, which would address shortcomings in the sampling process; 

lower the existing exposure limits for respirable dust; take advantage of new technology for measuring exposure—the continuous personal dust monitor; and expand 

medical surveillance, so that miners can take proactive steps to reduce hazardous 

exposures and better manage their health. On February 15, MSHA concluded a series of public hearings held across the country on this proposed rule, and we are 

encouraging all interested parties to submit comments by May 2, 2011. 
23 

Need for Legislation 

This Committee has a long history of standing up for our nation’s miners. It has 

never subscribed to the myth that mining fatalities are an inevitable aspect of the 

business. I am joining the plea that Secretary Solis made to you when she testified 

before the full Committee last month—for you to again stand up for miners and 

pass new mine safety legislation. 

Almost one year has passed since we lost those 29 miners at Upper Big Branch. 

We have learned much in that time. As I noted at the outset, we have come a long 

way in our understanding of what happened that day, and that understanding has 

allowed us for the first time in recent weeks to share with you some of the preliminary analyses of our investigative team. 

We also have learned how to better use all of MSHA’s available tools and strategies to fully enforce the Mine Act—including targeted enforcement, regulatory reforms and compliance assistance. The strategies the Agency has used for its impact 

inspections have been largely successful. In addition, its regulatory actions, if implemented, will make operators more responsible for finding and fixing violations and 

will highlight those mines with continuing problems. Our extraordinary compliance 

assistance and outreach efforts also will ensure that operators who want to do the 

right thing have the tools they need to avoid violations and hazards. 

To make MSHA truly effective in cracking down on serial violators who seem indifferent to miners’ health and safety, MSHA needs additional tools that only Congress can provide. We need to change the culture of safety in some parts of the mining industry, so that they are as concerned about the safety of their miners when 

MSHA is not looking over their shoulders as when MSHA is there—because MSHA 

cannot be there all the time. The Administration supports legislation that gives 

MSHA the enforcement tools it needs to ensure that all mine operators live up to 

their legal and moral responsibility to provide a safe and healthful workplace for 

all miners. 

I am not asking the Committee to take up any particular bill. I understand that 

this is a new Congress with new leadership. I am asking that we work together 

across the aisle and across the branches to address at least the following areas: 

Pattern of Violations: There is a reason that no Administration—Democratic or 

Republican—has figured out how to effectively apply the current statutory POV program. It is broken and can be improved only so much through regulation. For example, the provisions of the current POV statute could potentially put some mines in 

POV status indefinitely while being insufficient to ensure long-term change in other 

circumstances. While we believe we are making significant improvements to the 

POV program within the confines of the current statute, changes to the law that 

provide MSHA the tools to engage in a long-term, more remedial approach with 

chronic violators would be a significant improvement to current law. 

Injunctive Relief: The current law does not have a ‘‘quick fix’’ to the safety of 

mines like the Freedom Energy Mine where MSHA for the first time ever sought 

an injunction for a pattern of violation under section 108 of the Mine Act to change 

a culture of non compliance that threatened the safety and health of the miners. 

While MSHA was successful in compelling the mine to implement additional safety 

and health protections as a result of using section 108(a)(2), the current statute 

could be simplified to help MSHA make its case. The lesson learned is this: the litigation process using the existing tool may be slower than needed to protect miners, 

and new legislation should consider language that clearly provides the Secretary of 

Labor with sufficient authority to act when she believes protecting miner safety and 

health requires immediate action. 

Criminal Penalties: Legislation should strengthen the criminal provisions of the 

Mine Act. No mine operators should be risking the lives of their workers by cutting 

corners on health and safety, but for those who would engage in such a practice, 

we need to put a new weight on the side of protecting the lives of miners. We hope 

and intend that criminal prosecutions under an enhanced Mine Act would continue 

to be rare. Now they are rare, however, because the bar for prosecution is too high. 

We hope that with new legislation they will be rare because a more serious law will 

provide a successful deterrent. 

These enhanced criminal penalties should also extend to those who provide advance notice of MSHA inspections. In the aftermath of UBB, there were troubling 

reports of some operators providing advance notice of an MSHA inspection in order 

to hide violations and conduct that put miners at serious risk. This is an intolerable 

evasion of the law that is all too common. Increasing existing criminal penalties for 

these tactics would send a clear message that this behavior will not be tolerated. 

Whistleblower Protection: New legislation must ensure miners are fully protected 

from retaliation for exercising their rights. Because MSHA cannot be in every mine, 

finding every hazard every day of the week, a safe mine requires the active involve-
24 

ment of miners who are informed about health and safety issues and can bring dangerous conditions to the attention of their employer or MSHA before these conditions cause an injury, illness or death. Yet, as we heard from miners and family 

members testifying at the Committee’s field hearing in Beckley, miners were afraid 

to speak up about conditions at Upper Big Branch. They knew that if they did, that 

could lose their jobs, sacrifice pay, or suffer other negative consequences. 

The Mine Act has long sought to protect from retaliation those miners who come 

forward to report safety hazards. But it is clear that those protections are not sufficient, and many miners lack faith and belief in the current system. Legislation that 

creates a fairer and faster process is urgently needed. 

Conclusion 

Thank you for allowing me to testify before the Subcommittee. At the end of the 

day, it comes down to this: MSHA cannot be at every mining operation every shift 

of every day. There could never be enough resources to do that, but even if there 

were, the law places the responsibility of maintaining a safe and healthful workplace squarely on the operator’s shoulders. Improved mine safety and health is a 

result of operators fully exercising their responsibilities. Taking more ownership 

means finding and fixing problems and violations of the laws and rules before 

MSHA finds them—or more importantly-before a miner becomes ill, is injured or is 

killed. Mines all across this country operate every day while adhering to sound 

health and safety programs. There is no reason that every mine cannot do the same. 

I look forward to working with the Committee to find the best way to accomplish 

our shared goal of providing our nation’s miners the safety and health protections 

they deserve. 

Mr. WALBERG. Thank you for your testimony. And we look forward to, indeed, working with you. That is our purpose, as well as 

your purpose. 

At this point, we will go to questioning from members. And I will 

start by relinquishing that time to the chairman of the full committee, Chairman Kline. 

Mr. KLINE. Thank you, Mr. Chairman, for the courtesy and for 

yielding the time. 

Mr. Main, this morning, as Chairman Walberg mentioned, there 

is a story that was based on a report which MSHA submitted to 

the Appropriations Committees in the House and the Senate. And 

it is pretty damning when you look at it. 

You have mentioned several times today and in previous briefings and meetings that we have had that MSHA was, quote—was 

using ‘‘every tool at our disposal.’’ And you asked here just now for 

new legislation to give you more tools. 

And yet, it seems, looking at this story, that there is—the failure 

is not in having the right tools in the toolbox, but in the people 

using the tools in the toolbox. And so, when I looked at this—and 

I am embarrassed to admit that I hadn’t seen this report beforehand. But let me just go through a couple of these. And I am going 

to be asking for your comment on it. 

It says that on March 25, 2010, MSHA submitted a mandated report to the Senate Appropriations Committee on the activities of 

MSHA’s internal office of accountability. And here are some findings: 

Over the previous 2 years, according to the report, MSHA auditors from the agency’s accountability office found inspectors in 20 

of 25 field offices reviewed did not properly evaluate the gravity 

and negligence of mine operator safety and health violations. Supervisors in 21 of those 25 field offices did not perform in-depth reviews to ensure that inspectors took appropriate enforcement actions in accordance with MSHA policies. 
25 

MSHA officials in 15 of the 25 field offices audited did not adequately document inspections so that any enforcement actions 

taken would stand up in court. Inspectors in four of the field offices 

did not complete mandatory spot inspections for mines that generated large amounts of explosive methane gas. At an unspecified 

number of field offices there was a ‘‘lack of comprehensive inspections of all areas of the mining operation’’ and inappropriate levels 

of enforcement issuances. 

And then the story goes on to say that the findings mirror those 

of numerous MSHA internal reviews conducted after major mining 

disasters over the last 20 years as well as repeated criticism from 

the Labor Department, inspector general and the U.S. Government 

Accountability Office. So the question is can you give us some indication, a, is this accurate, and, b, what are you doing to address 

these? And what progress have you made? 

Mr. MAIN. Yes. I think the findings represent what the findings 

were with regard to the audit that was conducted. And I take for 

face value the—you know, the conditions that were—or the findings that were described by the audit team or the findings that existed. 

I think to understand the prospective of what it means—if you 

look back at the audits within MSHA over the last 10, 20 years, 

I think you are going to find problems that are identified during 

audits, number one. Secondly, when I became the assistant secretary in October of 2009, one of the things I started looking quickly at was the audits that were being conducted by MSHA and another change in the agency that occurred, which was the new inspectors that were coming into MSHA. 

As a matter of fact, the day I took the job, I think we had about 

half the inspectors that were hired since the Sago disaster. And 

with the 2-year training cycle they go through, had about 2 years 

experience under their belt. That was metal, non-metal and coal 

averaged out across the board. 

And you had a number of the new inspectors that were coming 

on were replacing the supervisors in MSHA. MSHA is an aged 

workforce, and, as we saw, the mining industry losing a lot of experience during the—that era from probably early—or the latter part 

of the early 2000s through this past decade, there was a lot of 

change out in the agency. 

And one of the things that I realized when I took this job, that 

we had to do things different. And that was we needed to create 

training programs that, instead of kept—we keep identifying these 

problems, to try to figure out a way to fix them. And to take into 

consideration the fact we had a lot of new supervisors coming within—coming into these jobs in the agency, that was a greater reason 

to do that. 

So about June of last year, we implemented a new training program for all MSHA supervisors for coal and metal and non-metal. 

And it is a 2-week training that supervisors are going through. I 

think we have about half of the metal, non-metal inspectors 

through it as we speak. We are holding the coal inspectors until we 

get through with some Upper Big Branch duties that we have the 

ability to cycle those in. 
26 

But the short message is that, you know, I think these problems 

existed. I think there is a number of problems like this existed over 

time. And I think we had to put in place, which we have, measures 

to train these problems out. 

The second measure that I initiated was a complete review of the 

MSHA inspection program, the policy and procedures. And I have 

tasked our folks to look at everything that our inspectors do to determine whether or not we are following policies, whether or not 

the policies are clear and all these internal audits and review—and 

there is quite a number of them, if you look back over the last 10, 

15 years—to make sure that the systemic problems we are finding, 

that we train MSHA inspectors as we put them through the cycles 

and the retraining cycles. 

But what is happening right now is that there is a crew that is 

plowing through everything the inspectors do to try to get some 

clarity to the job they do and to both use these to retrain inspectors, but also to improve the consistency in what we do in carrying 

out our job. Because one of the other concerns that I heard from 

the first day I was here was the consistency issue. 

And so, to tackle a number of these, I mean, we just needed to 

retool our system. So, you know, hopefully, as we look down the 

road, the kind of systemic problems that we have seen from these 

audits, that last one you spoke of and back over the years, that we 

have put successfully a program in place that we don’t find these 

or find these kind of things. 

Mr. KLINE. Well, I hope that we move beyond hopefully and are 

really doing this. 

And my time has long expired. I apologize and yield back. 

Mr. WALBERG. Thank you, Mr. Chairman. 

I turn now for 5 minutes of questioning to the ranking member, 

Ms. Woolsey. 

Ms. WOOLSEY. So, Mr. Secretary, for the record: yes or no, 

haven’t these findings in that report and their recommendations— 

haven’t they all received corrective actions that were implemented? 

Mr. MAIN. Yes, they were corrected at the time, once the audits 

were conducted to fix that problem. 

Ms. WOOLSEY. Okay. 

Mr. MAIN. But I think, in a bigger picture, we looked at this 

more broadly and to figure out a way that, you know—— 

Ms. WOOLSEY. I know. And I appreciate that. I just wanted that 

for the record. 

Mr. MAIN. Yes, that is correct. 

Ms. WOOLSEY. That those findings absolutely they were corrected 

immediately. Using that as our base, I mean, one of the things we 

learned over the last 2 years on this subcommittee is—and we have 

known, but we proved it with our hearings—is that MSHA is really 

stretched to its outer limits for legal authorities. And it is really 

important that we have legislation that would better advance the 

culture of safety with the sub-set of mining operators, who habitually violate safety standards and put production ahead of safety. 

So I would like to give you as much time as we can to identify 

the specific areas in the Robert C. Byrd mine safety bill that we 

wrote and introduced—and how would that have helped? And how 

will it help? 
27 

Mr. MAIN. Well, I think there are a number of provisions in the 

legislation that was introduced last year on the House side that 

would help improve mine safety. And I just start with these. What 

is it we know that we need to fix? For all of us who attended the 

congressional hearings last year, both on the House side and the 

Senate side, and particularly the field hearing in Beckley, West 

Virginia, where families and miners brought to light conditions and 

problems that existed with regard to mine safety. 

Ms. WOOLSEY. Right. 

Mr. MAIN. I think there was a pretty healthy roadmap that was 

laid out from just the information that was collected here on the 

Hill. You know, it told a story about miners being fearful of speaking out about conditions. It talked about tactics where advanced 

notice was being provided underground to the mine when inspectors would show up. It was a story about violations that were not 

taken care of. 

It was a story about when MSHA is not there, how the mine law 

is applied differently. And when you look at—when you take value 

from the information we—that we all, I think, saw at that time, 

you understood that we needed to do something to change the culture of the mining industry. 

For those who decided that when no inspector was around, that 

they would put their miners at greater risk and challenge their 

health and their safety to make a profit, we have to do something 

different. MSHA can’t be there all the time. So how do we deal 

with mine operators that act that way? 

How do we give miners more courage to speak out about the conditions that exist in the mines that they work at? You know, since 

the Upper Big Branch tragedy, we have made a number of these 

‘‘impact inspections’’. We have made a number of them where we 

have had to go in, we believe, to capture the phones, to make sure 

that no notice went to the mining folks underground so we could 

get a good view of what is really going on. 

And in some of those cases, I mean, we found situations that you 

could have had a mine explosion at the snap of a finger. I mean, 

we walk in a section and find the ventilation controls down. That 

is ventilation controls that are needed to dilute any methane that 

is liberating from the coal seam or to control the coal mine dust 

that can cause both explosions or to black lung disease. And there 

was intentional acts to operate that way. 

And, as you described in the one particular case, the inspector 

walked up to this huge mining machine. There is so much dust, 

they couldn’t even see it. That is an indication that we have a problem. 

This happened after the Upper Big Branch tragedy, the case that 

I am talking about and I think you may have referred to. So I 

think there is a lot of things that we found that we have got to 

take care of having mining operators who think about operating 

that way to think differently. And you have to have tools that are 

applied when MSHA is not at that mine. 

And we have talked about the criminal provisions. We have 

talked about the subpoena provisions. 

Ms. WOOLSEY. Yes. 
28 

Mr. MAIN. We have talked about new rules that would better 

protect miners who do speak out, protect their pay, their jobs, 

their—you know, if they get placed in jeopardy. Those are a number of things that I think are still important today. 

Ms. WOOLSEY. So can you talk a little bit more about subpoena 

power and why is that necessary? 

Mr. MAIN. Well, let us just use a current case in West Virginia. 

We have a state agency that has subpoena power that is using that 

power to subpoena witnesses where we have an accident investigation going on. We have to go to a public hearing before we can ever 

have that kind of a power. 

Information that we are able to get through the use of that state 

subpoena is something we don’t have. And I think a reasonable 

person would look at it from the standpoint of why doesn’t the 

agency have it. And its lack thereof,—is that really impeding the 

agency’s ability to get the job done? And I think the answer to the 

latter part of that question is, yes, if the state wasn’t there in this 

particular case. 

Ms. WOOLSEY. Okay. 

Mr. WALBERG. Thank you for your testimony. Time is expired. I 

will claim my 5 minutes of questioning here. 

Mr. Main, I think going on from Chairman Kline’s questioning 

about the report that we saw in the paper today. But your testimony states that MSHA has developed new 2-week training program for MSHA field supervisors to improve the quality and consistency of enforcement. Last year, the Department of Labor’s inspector general issued a report critical of MSHA’s ability to track 

training for inspectors. How is the agency prepared to track training for all field supervisors now? 

Mr. MAIN. Yes. You know, one of the things that you—I think 

your point about me, I am a find and fix kind of person. And since 

I took this job October of last year, there have been a number of 

deficiencies. And a number of these have occurred over the years. 

The computer error that happened back, I think, in—or 2007 with 

the POV program, some of the audits that date back to—if we look 

back at Sago, Aracoma Alma Darby, Crandall Canyon, deficiencies 

that are there. 

And the I.G., we have been working with him closely for them 

to work with us to help identify problems we have so we can fix 

them. I think with regard to the report that you have raised, every 

one of the recommendations they made we agree with. And we 

have implemented different programs within MSHA to make sure 

that we do have a good tracking system. We are taking a look at 

how we do train, how we set up training programs. 

We looked at the issues they raised about the missed training. 

And that is something that we have agreed to fix as well. So we 

agree with what they found and said we need to fix it. 

Mr. WALBERG. And so, the process is in place now of actually fixing that? 

Mr. MAIN. Yes. Yes. 

Mr. WALBERG. Let me move to MSHA’s recently announced—the 

reinstatement of whistleblower at a mine in Puerto Rico. The whistleblower program is already considered to be very strong. And the 

reinstatement of this worker demonstrates that in this instance, 
29 

MSHA is working on behalf of miners. Can you tell the committee 

how many whistleblower complaints were made last year? In how 

many cases were workers reinstated? And how many cases were 

deemed without merit? 

Mr. MAIN. If you give me 1 second, I may—— 

Mr. WALBERG. Sure, sure. And as you are looking—— 

Mr. MAIN. If I can’t answer it today, I will try my best to do that. 

Mr. WALBERG. Yes. 

Mr. MAIN. If I can’t, I promise I will send the information to you. 

Mr. WALBERG. I guess, along that, as you are thinking through 

the answer, how long does it take to resolve whistleblower cases, 

on average? And does the whistleblower office report directly to 

you? 

Mr. MAIN. The whistleblower office is in the office of assessments. And currently within MSHA, we have an evaluation going 

on of our entire structure. And I will just start out with that. Currently, yes, it is in the office of assessments, which is below the office of the assistant secretary. And they report through the office 

of assessments to us. 

And we are looking at the entire infrastructure of how this whole 

program of the special investigation program works, which is all 

one program that is in the assessments program and looking at 

how we can make that more efficient and more effective. So it is 

currently there, but a review may change that here, that we have 

ongoing. As far as the number of cases that we have, I will probably have to get back to you and provide you the update information on that. 

Mr. WALBERG. I would appreciate that. Let me go, in the interest 

of time here. In fact, in the interest of time, we are running out 

of it. And I want to abide by my own rules to start this process. 

So we will come back to some of those questions. 

At this point, let me yield 5 minutes to Congressman Rahall from 

West Virginia. 

Glad you are participating with our committee today. 

Mr. RAHALL. Thank you very much, Chairman Walberg. 

Mr. WALBERG. Go ahead. Okay. 

Mr. RAHALL. Okay. Thank you very much, Chairman Walberg. I 

appreciate your allowing me to sit in with—on these hearings 

today, which are tremendously important. I appreciate your work, 

Chairman Kline’s work, Ranking Member Woolsey and her very 

kind comments and she and former Chairman Miller’s visit to 

Beckley, West Virginia shortly after the UBB disaster. And I appreciate all the committee’s deep concerns for our coal miners, their 

health and safety and especially for those family members that 

have not yet reached closure over this UBB disaster. 

Mr. Main, I appreciate you and Mr. Stricklin’s work. He is here 

accompanying you today—and all of MSHA’s work. You have come 

under a little criticism here in the latest reports that have been released, but I think you responded very adequately to the chairman’s questions and the fact that you have—since you have been 

on-board at MSHA, which is, what, a year now? 

Mr. MAIN. A little over. 

Mr. RAHALL. A little over a year—you have had a lot of work to 

do, a lot of changes to make, a lot of attitudes to change, and a lot 
30 

of philosophies to change as well. And I commend you for the work 

you have been doing under some very trying circumstances. 

I did underscore something that was in your written testimony. 

You make the point that, ‘‘MSHA’s effective enforcement of the law 

should create a level playing field so that operators who play by 

the rules and provide safe mining operations do not have to compete against operators that cut corners.’’ 

Now, I think that is an important point. It is unseemly that any 

operator would enhance their competitive advantage in the world 

marketplace by cutting back on measures that ensure the health 

and safety of their miners. But we have seen it happen. And the 

good actors, those who abide by the law and their workers, unfortunately, suffer as a result. 

It is a delicate balance for you to target the bad actors and ensure that companies with good records are not adversely affected. 

And so, I am asking you, I guess—and you have addressed the broken system of pattern of violations. And I know in last year’s Robert C. Byrd Mine and Health Safety Act we tried to improve that 

process whereby good actors can work their way off of any 

endangerment of being put on the POV. 

What assurances can you provide those who are truly abiding by 

the law who want to do the good thing for their workers and have 

safety as their paramount concern? And that is the majority of 

them, I might add, certainly, in my district. But how can you assure them that we are going to address their concerns in—as we 

move forward, both regulatorily and legislatively? 

Mr. MAIN. First off, I would like to thank you, Congressman 

Rahall, for joining our rescue and recovery operations at Upper Big 

Branch mine. You were there to provide a lot of moral support for 

the families. And that meant a lot for those who spent time with 

the families through the most difficult time of their life. To have 

folks like Congressman Rahall, now Senator Manchin and others 

there with us was—it was very helpful. 

And I think that there are a number of us that have gone 

through so many of these tragedies with families that understand 

our core mission in life is really to find the problems and fix them 

and make sure that we have mines in this country where the miner 

can go to work every day, really not worry about, you know, if he 

is going to make it through the shift or she is going to make it 

through the shift and get home at the end of the day. And that is 

our real objective here. 

With regard to the actions we are taking, we have—I think, went 

out of our way to really try to target—where it is that we need to 

spend our energies doing what? After the Upper Big Branch tragedy, you bet it shook me up. And I think it shook everybody up in 

the mining industry to try to figure out how could we at this time 

in our life have the worst mine disaster in 40 years. And one of 

my responsibilities was to stay focused on what it is we need to do 

and to make sure that we used the tools that we had effectively 

in the places that we needed to. 

And what we did with the impact inspection—I just wanted to 

make sure that we were out there with our troops looking for and 

spending the extra time at mines that had the most concern. And 

the program that we initiated right after Upper Big Branch, I 
31 

think, has accomplished that. It has give me a level of comfort that 

we have got a better handle on, you know, trying to identify and 

spend the time at mines that we need to. 

It is not a perfect system, but I think it is about as close as, I 

think, we are going to get in terms of applying that kind of attention. So, you know, out of 14,500 mines that we have inspected, you 

know, we have responsibility for, we have tried to focus on those 

that need the attention. 

When I revamped the pattern of violation—— 

Mr. WALBERG. I am sorry. The gentleman’s time is expired. 

I am sure we will have further questioning. 

And I now move on and welcome the gentlelady from West Virginia, Mrs. Capito, for questioning. 

Mrs. CAPITO. Thank you, Mr. Chairman. Thank you for allowing 

me to be a part of this committee meeting. I appreciate it very, 

very much. 

And I would like to thank the Secretary for being—always having an open door and being willing to help me understand the way 

he is moving forward with MSHA. He has been very respectful, but 

also very quick to respond. And I appreciate that. 

Mr. MAIN. Thank you. 

Mrs. CAPITO. I want to go—and we talked about this last time 

we met a couple—last week—to the pattern of violation. I was 

home last week talking to a lot of folks who are in the industry trying to meet the standards of the new pattern of violation. And just 

so I understand it correctly, understanding that the backlog is and 

probably still remains to be a big problem, but that is a problem 

you have identified and tried to work on. 

But also the fact that your new rule, as I understand it, says 

that, not only do you fall into the pattern of violations for violations 

that have been certified, that have been gone through any kind of 

a grievance or an appeal kind of a process, but also if you are cited 

for a violation and you still have—as the operator, you have not— 

not be able to have judged whether that is a viable or non-viable 

violation or the strength of the violation. But even though you 

haven’t had that judgment yet, it still falls within the range and 

accumulates to become one of the pattern of violations. 

And I guess the question is this—do you feel that this alleviates 

some kind of due process that people would have to—you know, to 

repeal these, understanding that the appeal process is very skewed 

and distorted and stalled, in some cases. So what is your response? 

Mr. MAIN. Yes, and maybe I can spin off of a question raised by 

Congressman Rahall and answer your question in tandem with 

that about the pattern of violation process. We have the current 

process, which we have cleaned up some of the flaws with it, under 

the current rules, which provides some transparency to the industry to let them understand what the rules are. And I am a firm 

believer in that. You know? They need to know what the rules are 

so that we don’t have mines gravitating that way. 

Under this current rule, there is a provision that we have to use 

final rules for part of the determination. And I think that gets to 

the crux of the problem that you are raising as to an issue that is 

addressed in the proposed rule where we are taking out that final 

rule as a requirement that we have to meet. 
32 

And I will explain why we are doing that. When I first started 

taking a look at the pattern of violation process, it was one that, 

well, no mine in the United States had ever been placed on an actual pattern as contemplated by this Congress when they passed 

the law in 1977. Thirty-three years, no mine had ever had that 

standard actually applied. 

And that told me that the provision was broke as a start. And 

we looked at the processes in place, and we found some deficiencies 

in the way that the rules was applied and sometimes how easy it 

was to get off. It wasn’t as stiff of a—it wasn’t the kind of threat 

that Congress had recognized. 

So we fixed, under the current rule, what we could, looked forward to the statute. And what the statute told us is there was no 

proposed pattern of violation to send out this notice in advance. So 

we took that out. There was no indication that Congress intended 

for us to wait for a citation to be finalized before we applied the 

pattern. And I just saw some cases that just came through about 

a week or so ago of 4 years ago of pretty serious violations. 

These had to wait 4 years before they become final order. So we 

had a concern that we can’t wait for years. We don’t need to be putting a mine on a pattern notice 4 years after they racked up, you 

know, the violations when they may have become a perfect mine 

by that time. You know? So—— 

Mrs. CAPITO. Not to interrupt, but my time is kind of running 

out here. 

Mr. MAIN. Okay. 

Mrs. CAPITO. But would a better approach be to expedite the— 

I understand—you know—expedite the backlog to make—you 

know, and have us, maybe, write in there that, you know, these 

have to be washed out in 40 days or 50 days or something of that 

nature, take the most egregious ones first, you know, and move 

those through the system first. You know? I understand you don’t 

want—you don’t want these patterns of violations out here for 4 

years. 

And the other thing, in case I run out of time, I would like to 

say the transparency aspect is tremendous. I know that you are 

going to be doing this on a Web site so that the operators can follow, you know, where they are and how they are falling into that. 

But if you could speak to the expediting the backlog as a way to 

have final judgment made before they fall into the pattern of violation. 

Mr. MAIN. When I took this job in October of 2009, one of the 

other things on my deck to look at was this backlog. And unfortunately, we have a backlog that precludes a lot of immediate action. 

There are so many violations stacked up, 80,000-some violations, 

because of this backlog, that it is an impediment, I think, to get 

us to where you may want to go. 

We have applied a lot of resources to fix the backlog. We are appreciative of the money that Congress appropriated to help do that. 

Even with the monies appropriated, it is going to take us in a matter of, not months, but years to get the backlog down and, I guess, 

to the number of programs going forward, to cut and to—these contested violations, I think, is work for the industry, for miners, for 

the government and all of us. 
33 

Mr. WALBERG. We will have to end the questioning. The time is 

ended. But this is an issue we won’t end here and need to continue 

looking at it. 

At this point, we will move to the ranking member of the full 

committee, Mr. Miller. 

Mr. MILLER. Thank you very much, Mr. Main. Thank you for 

being here. And I have sort of the same questions as Mrs. Capito 

and Mr. Rahall have raised here. As I look at it, last year, it took 

about 824 days to move a citation to final order of an unwarrantable failure. That is like 3 years. I mean, that is forever. 

Mr. MAIN. Yes. 

Mr. MILLER. I also know that the inspector general, in their September 29, 2010 recommendations recommended that you do exactly, apparently, what you are doing. And that was to evaluate the 

appropriateness of eliminating or modifying the limitations on current regulations, including the use only of final orders in determining the pattern of violation. So, you know, we have this other 

report where they made the recommendations and you met every 

one of those recommendations. And that is sort of a test of whether 

or not the inspector general is effective or not. 

And here, you are doing it again. You are meeting his recommendation, which is to think of another way of doing this, because, clearly, those 80,000 citations are a way of gaming the system. 

Because they game the system, we had to put up $22 million additional for people to deal with the backlog. The appropriators did 

that, I think, last year in one of the C.R.s, one of these things that 

comes through here every couple of weeks now. 

So we are chewing up taxpayer resources because they are gaming the system. And the inspector general looks at this system and 

says, you ought to go—you ought to move to a new system. These 

citations—you took action here against somebody who, from July 

2008 to 2010—what the hell is the name of this mine? Mr. Massey 

again—Massey’s Energy—Freedom Energy Mining Company’s 

Number One. 

Between 2008 and 2010, had 1,952 citations and 81 orders to the 

company violating critical standards, including improper ventilation, failure to support the roof in the mine, failure to clean up the 

combustible materials, failure to maintain electrical equipment, the 

failure to conduct the necessary examinations of the workplace. I 

mean, how long are we going to let these people—we are down to— 

you said there were 14,500 mines in—within your operation at 

MSHA. So we are down to where there is about 14, 15, maybe 20 

mines that are really in this atmosphere. 

So it is just a question of—I mean, I think we should change the 

statute so that you don’t have to work within a bad system. But 

the fact of the matter—it is a very simple decision for the Congress. Are we just going to continue to empower rogue operations 

that endanger miners that are on notice from thousands of citations that this is a dangerous workplace? 

Is the Congress going to sit here and say, we will just wait for 

the next accident? Because, apparently, we can only legislate if 

people die. It is the only way the Congress can move. We get all 
34 

our adrenaline pumped up here, and then maybe we do something. 

But we don’t do anything in between accidents. 

And we now are on notice from the inspector general’s office, 

from your office, from the level of citations that we have a relatively few number of mines that have decided it is in their economic interest, their economic—whatever their business plan is to 

game this system and put these miners at risk. These miners are 

subsidizing their business plan with their risk in the workplace. 

This should not be a hard decision for the Congress of the United 

States. You know, we keep saying, well, you know, there is a lot 

of good operators. And Mr. Rahall is always pounding me about 

this. And I agree. Why should those good operators enable these 

people to play this system this way at the risk of these miners? 

There is a question in there somewhere, and I bet you can find it. 

[Laughter.] 

Mr. MAIN. There are two points that I think you raised. One, it 

was a Freedom Mine that we took the first Section 108 injunctive 

action against. And it was a mine that had amassed nearly 2,000 

violations over a 2-year period, over 80 orders. And it had ownership, when we put this mine on this 108—or took this 108 injunctive action—had ownership of the mine with the most ‘‘D’’ orders 

in the United States out of 14,500 mines. 

And to address the point that Congressman Rahall raised, that 

is the kind of mine that we need to be dealing with. And that is 

where we are putting our strategic attention to identify mines like 

that and move in. No one, I don’t think, could tolerate, or should 

tolerate a mine with that kind of a record. And I think we need 

to be active. 

What we learned in that was that it takes time to do that. And 

I don’t want Congress to think we have this silver bullet either 

that we can just decide today that we have an Upper Big Branch 

that we need to deal with in that context and tomorrow have that 

mine shut down. That was a lesson that we learned from the experience of Freedom Energy. 

And as far as the problem that we recognized a year ago—— 

Mr. WALBERG. The gentleman’s time has expired. 

And we will move on now to Mr. Rokita. 

Mr. ROKITA. Thank you, Mr. Chairman. 

Thank you, Mr. Main, for being here today. In a hearing with 

Secretary Solis 2 weeks ago, on February 16th, I asked if the Department of Labor and MSHA would make the underlying data and 

assumptions associated with your respirable coal dust rule available to stakeholders so that they can comment while the rule is 

open so that we can have a better rule. 

Mr. MAIN. Okay. 

Mr. ROKITA. The 10 business days came and went yesterday. We 

got nothing in writing. You did meet with my staff. And you said, 

it is not—you don’t have access to the data. It is NIOSH’s data. 

You did agree in that meeting—and I want to get it on the record 

here—that you will help us get that data. And so, I want to know 

if now you will agree to keep the rule open so long as it takes so 

we can get that data because apparently no one has really asked 

until I have been asking, I guess—so that we can have a better 
35 

rule at the end of the day. It is a yes or no question. I am just trying to get your thoughts on it. 

Mr. MAIN. Well, I think there is some confusion over the data. 

And I know we were over yesterday meeting with some of the congressional folks. But the data that we relied on for the rule is what 

data that we provided yesterday. There is a request for data that 

has, as I understand, been made by the mining industry for information that was developed by NIOSH with—you know, to do with 

some of the findings that they have, which is not data that we have 

relied on to develop the rule. 

Mr. ROKITA. Okay. 

Mr. MAIN. That is additional information. And what we have 

done is we have actually talked to NIOSH, our staff, when this was 

brought to our attention because we want to get the information 

out there as well, too, just to clear the air. But NIOSH is the—— 

Mr. ROKITA. So does that mean you didn’t have access to the— 

NIOSH’s data when you prepared this rule? 

Mr. MAIN. As I understand it, the data that is being requested 

is data that was not relied on by our folks when we developed the 

rule as a starter. It is data that folks would like to get that NIOSH 

used to develop some of their information. 

Mr. ROKITA. Okay. 

Mr. MAIN. Okay? And what we are trying to earnestly do is work 

with NIOSH and—or work with the folks who have made the request to get that information released. We have made—— 

Mr. ROKITA. Because you would like to rely on it? 

Mr. MAIN. Pardon? 

Mr. ROKITA. Because you would like to rely on it? 

Mr. MAIN. No, because there is an interest by the public to get 

the information. We want to be helpful to get it out. 

Mr. ROKITA. Okay. 

Mr. MAIN. Okay. 

Mr. ROKITA. But would you keep the rule open so that we could 

get—until we get that data? 

Mr. MAIN. Well, since it doesn’t deal with the underlying data 

that was used with the rule, it would not be proper, I don’t think, 

to do that. 

Mr. ROKITA. But it would help shape the rule. 

Mr. MAIN. Pardon? 

Mr. ROKITA. It would help shape the rule and maybe make a better rule. 

Mr. MAIN. It may give folks some ideas about what they want 

to comment on. But this rule has been in the making since 2000. 

This is the third rulemaking. And, you know—actually, we have 

held seven public hearings, six in the coal fields, to give the mining 

community a chance to provide information. 

I just put out a notice yesterday capitalizing all the questions 

that have been raised to ask the industry again to provide information. But the subject of what we are talking about is not data that 

the standard was directly built from. 

Mr. ROKITA. Okay. 

Mr. MAIN. But, you know, we are going to be helpful to—— 

Mr. ROKITA. Well, thank you for your help. And I would hope 

that you keep the rule open because that might provide us some 
36 

data that would help make this a better rule so that we can stay 

in the mining business here in America but keep miners safe. And 

that should—that is a common interest we all have. 

In January, the president issued an executive order that serves 

to improve regulation of regulatory review. Since you took office in 

late 2009, your agency has propounded no less than six major rulemaking activities for the mining industry. And we just referenced 

some of that. 

Can you tell the subcommittee what you are doing to take into 

account the cumulative costs and burdens that are being—or would 

be imposed no stakeholders by these regulations? And does MSHA 

conduct an analysis or any safety—on any safety or health benefits 

when preparing these regulations? 

Mr. MAIN. Yes, by law, we have to do that analysis. And we do 

it as a responsible act of the agency as well. I think if you look at 

our regulatory agenda, we have tried to develop a strategic approach to the regulations. 

Black lung—I mean, we have had—anybody that works in the 

coal industry or lives in coal mine communities knows somebody 

that dies from the disease. Last report of mortality study published 

by NIOSH shows that 10,000 miners died from this disease in the 

period ending 2004. There is a need to act to deal with the rule. 

And we were asking for all comments—— 

Mr. ROKITA. Okay, thank you, sir, very much. And I am not in 

the industry, so maybe you can educate me. If MSHA and you are 

concerned about the dust that a coal miner is exposed to at the 

working face, which would make sense that we all be concerned 

about that, would it not make sense to employ something like air 

stream helmets rather than worry about the entire environment? 

I mean, wouldn’t that make more cost-effective sense? 

Mr. WALBERG. The gentleman’s time is expired. And maybe we 

can get that in the second round. 

Mr. ROKITA. Thank you, sir. 

Thank you, Mr. Main. 

Mr. MAIN. Okay. Thank you. 

Mr. WALBERG. We will move to Mr. Payne, who has joined us. 

Thank you. 

Mr. PAYNE. Thank you very much. 

I understand mine operators enjoy the time value of money 

merely by filing a contest and waiting until their case moves to the 

top of the pile several years later. Mr. Main, is the—is legislation 

needed to create disincentives for those who use contests simply to 

buy time or to game the system to create or to evade steeper sanctions, in your opinion? 

Mr. MAIN. Yes, I think that we have provided some technical 

guidance over the past year about reforms that would help fix this 

process through the legislative process. I don’t know if that is what 

you are referring to or not. But an issue that was raised by 

Congresslady Capito over the final order—we have a rule that was 

never used. I am talking about the pattern of violation and talking 

about the system being gamed and delays in the—in violations that 

were cited before they could even be used. 

I think we all have to ask why was this rule never implemented 

in 33 years. And what is it going to take to fix it? We have came 
37 

up with a solution through a change of regulation to help get us 

there. But it does not fix the problem entirely. And I think you are 

going to hear a lot of discussion about this final order issue. 

And if you look at the final order application in the pattern of 

violation system, does it work better for miners’ protection now 

under the current regulations, which means you may have to wait 

3 or 4 years to get a—as we just had with the citations that were 

finalized recently—before we could take action? Or should we have 

the ability to take action on the front end. 

And when we propose a rule, it puts MSHA in the position of 

being able to take action on the front end not to have to count on 

those final orders. But at the end of the day, there is still a statutory standard that is going to be applied, which means that every 

mine that winds up being on the pattern of violation, faces an action—this is legislation—faces an action of a closure order for every 

‘‘S & S’’ violation that is found at that mine during the inspection. 

Some of those things may be reasons why this law was never 

used for 33 years. And it may be a central issue that discussions 

about legislation—this may well be a central issue dealing with the 

impact of the current rule when it is fully applied, the final order 

issues. But, as we see it, it is better protective of the miners if we 

do not use final—wait for final orders before we make a decision 

about taking any action against a mine that may be considered unsafe enough to have a pattern. 

Mr. PAYNE. And there is another question that I have. I really 

wanted to follow up, too, on the pattern of violations. However, the 

question about advanced notice—Monday, the U.S. attorney filed 

an indictment against a Massey security official for making false 

statements to the FBI and seeking to destroy documents. 

The indictment charges that this official directed his security 

guards at the Upper Big Branch mine to provide advanced notice 

of MSHA’s inspections. The indictment echoes testimony given by 

Gary Quarles, a Massey miner and the father of a miner killed at 

Upper Big Branch, who said that, ‘‘When MSHA arrived at the 

mine, Massey radioed to say there is a man on the property. This 

signals to miners and foremen to correct deficiencies or direct the 

inspector to—away from the deficiencies.’’ 

And so, I wonder if—does this ‘‘catch me, if you can’’ approach 

put miners at a greater risk. And when advanced notice is expressly prohibited in the Mine Safety Act, is Massey a case of isolated misconduct? Or is this more widespread, in your opinion? 

Mr. MAIN. This problem is bigger than we would all like. I should 

probably start from that statement. The miners’ families who 

talked about this being a problem during the congressional hearings, I think, made that point clear that, you know, there was advanced notification going on. We found this actually happening 

when we have been making these impact inspections and special 

inspections. 

As a matter of fact, we have had to seek injunctive action against 

two, and I think, three mines here over the last number of months 

where we have found this conduct. If you look at the mine that we 

did an afternoon shift inspection of on—in September, following the 

Upper Big Branch disaster, the one we talked about—went in the 
38 

mine. Ventilation controls not in place, dust so thick that you can 

hardly see the continuous miner. 

Had we not went to that mine at the time we did, we can only 

imagine what could have happened. But when we got the mine, we 

captured the phone. We prevented advanced notice because we did 

that because we thought that this was a mine that may use that 

tactic and was able to get in and find conditions as they existed. 

So if you look at this advanced notice issue, it is a real problem. 

And I think—— 

Mr. WALBERG. I am sorry. The gentleman’s time is expired. 

We will move on to Dr. Bucshon. 

Mr. BUCSHON. I would like to thank you again, Mr. Main, for the 

time yesterday in my office discussing this issue. And so, I don’t 

have any questions today, but I would like to yield the balance of 

my time to Mr. Rokita from Indiana. 

Mr. ROKITA. Thank you, Congressman Bucshon. 

You know, West Virginia is kind of the face of the American mining industry. But Indiana is not too far behind, as you know, Mr. 

Main. And so, these issues are of paramount importance and interest to us. Again, I want to thank you for your time. 

Picking up on my question—and, if you remember—again, not 

being in the industry, instead of achieving some—or trying to 

achieve an unachievable environment, okay, a standard or environment in the mine, why not use some other technologies that are 

available, like helmets, that would reduce the cost of mining, protect the miner and move down that route? Are you familiar with 

what I am talking about, these helmets where the miner actually 

breathes air that is filtered in a self-contained helmet apparatus? 

Mr. MAIN. Some mines actually use those. And the way the law 

is constructed—and Congress, I think, wisely put this together this 

way back in 1969—was to say to the mine operators that you have 

to control the dust in the mine environment. It is a mandate. 

And when we started, we had a lot less controls than what we 

had today, and the dust was much higher. And I think the first 

standard was about a three milligram standard to give a phase-in 

time. That was right after the 1969 Mine Act. 

The law explicitly said that the respirators could not be used to 

control the dust. It had to be through the methods of engineering 

and controlling the dust. And over the years, I think we have developed much better dust control technology to implement what the 

Congress had thought. And I think we have better ways to manage 

how we control that dust. 

As a matter of fact, you know, when you look at the data, the— 

you know, almost all the mines in the country are maintaining a 

level that is at or below the standard that Congress prescribed. So, 

you know, the fact is that mine operators must control this dust 

through the—you know, the dust that gets in the environment. I 

think that is a very wise approach. 

As far as additional respiratory protection, operators are obligated to provide that when they get into these dust excursions. The 

air stream helmets is one methodology, as we call them, that some 

operators use. But there is nothing to prevent any operator in the 

mining industry to take to employ these at every mine. But they 
39 

are obligated to provide respiratory protection if there is hefty 

dust—— 

Mr. BUCSHON. The law you talked about where they weren’t allowed to use the air stream helmets—do you—that is a current 

law? 

Mr. MAIN. The current law requires engineering controls, yes, as 

a primary use. 

Mr. BUCSHON. Yes. And that is a statute and not a regulation? 

Mr. MAIN. That is a statute. 

Mr. BUCSHON. Yes, yes. Would you be supportive of changing 

that? 

Mr. MAIN. No, I think that you—if you look at how we mine coal 

in this country and if you look at how maintenance happens or 

doesn’t happen in the mines, I think when you let loose of that control measure, the environmental control, you risk of really ramping 

up the dust levels back in the mines that we have spent decades 

to get down. And I think we have achieved a point in time in mining history that we have developed a lot of advanced dust control 

technologies to fix the problem. And a lot of mines operate every 

day as—— 

Mr. BUCSHON. These are proven technologies—sorry to interrupt. 

These are proven technologies, not in the experimental phase? But 

these are proven, workable, not cost-prohibitive technologies you 

are talking about? 

Mr. MAIN. These are technologies that are used every day in 

mines that are able to maintain dust control levels. 

Mr. BUCSHON. Okay, thank you. I have got one more question. 

It is not necessarily specific to the mining industry, but industries 

that you regulate. I am hearing that there is inconsistencies when 

inspectors come through. 

One inspector might come by one month and find—not say anything about something, and another inspector comes by another 

month and finds something, and you are—these guys are—it seems 

like they are always chase their tail because the inspectors—the inspections, I should say, aren’t consistent. Can you respond to that? 

And what are your controls to make sure there is consistency 

across inspections? 

Mr. MAIN. Yes, one of the things I looked at when I first became 

assistant secretary was this issue of inconsistency. And, as I pointed out when I recognized we had about half of the inspector staff 

that had about 2 years experience under their belt because of this 

shift of populations of the—you know, the retirements within 

MSHA as well as the mining industry, we began to, a, look harder 

at areas where we were having inconsistencies and, b, looking at 

ways to fix that. 

One of the things—I am probably the most traveled assistant 

secretary that probably ever had this job. My wife tells me that 

anyway. But I went out to—but it is for purposes. I went out to— 

met with the aggregates industry in Indiana—in Indiana, Illinois, 

to South Carolina, North Carolina, California and met with folks 

in Oregon. And really, we sat down with these aggregates associations, the mining community and sort of talked through a lot of 

these problems we were having. 
40 

As a result, we have really formed, I think, a really good alliance 

with the National Sandstone and Gravel Association and others as 

a pipeline to feed those in and give us an opportunity to clear those 

up. Some of them are policies, and some of them are people. 

Mr. WALBERG. I am sorry. The gentleman’s time is ended again. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Mr. WALBERG. And we will move on to a second round. 

And retaining my time, I will move to Ranking Member Woolsey. 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

Mr. Secretary, miners are the first line of defense to alert operators of an unsafe condition. But we heard testimony that few miners believe that the existing provisions of the Mine Act adequately 

protect them from retaliation if they speak up. At the Beckley 

hearing, we heard that if a miner objects to unsafe conditions, this 

could—and it could slow down coal production, the miners risk losing their job if they brought it up. 

In fact, one of our witnesses, a mother who lost her son, told us 

that he had said to her repeatedly that he thought he was going 

to die in that mine because it was so unsafe. And she kept saying, 

‘‘Well, why didn’t you say something about it?’’ And he said that 

he would be retaliated against and if not at that very moment, but 

somewhere down the line. 

So the Robert C. Byrd Mine Safety Act extends the 60-day statute of limitations to 180 days. It updates the burdens. And it 

makes it a felony to knowingly interfere with the livelihood of miners who report hazards or violations to state or federal authorities. 

Is this important? Do we need other reforms to protect against 

retaliation? 

Mr. MAIN. I think we have to look very hard at looking at ways 

to give miners a level of comfort that they can speak out if they 

are exposed to unsafe or unhealthy conditions and see that action 

is taken to protect them. They are fearful of losing their jobs. I 

mean, there is just, in my mind, no doubt about that. You know, 

some miners have that fear. 

And I think we need to be looking at how we increase the protective measures to allow them to have a greater level of comfort. And 

that means in cases, more time, that, in cases, means more penalties against those who retaliate against miners. 

That means that the miner should not have to worry about am 

I going to get paid if I lose my job or reassigned to—cleaning belts 

in mines is not always noted to be the most precious job. But, you 

know, winding up saying something and winding up getting a shovel in your hand and have to clean up along the belt lines, things 

like that. But, yes, I think those are things that—that we really 

need to look at in terms of improving the protections to miners. 

Mr. WALBERG. Thank you. 

We will move to Dr. Bucshon. 

Mr. BUCSHON. I toured a coal mine in my district about 4 or 5 

months ago, Gibson County Coal, 600 feet down and two miles to 

the face. I probably told you that. And when I did that, I had to 

be trained on a self-contained rescue—or self-rescuer. And it was 

pretty interesting because my staff with me, just the fact that they 

had to have a self-rescuer was an issue with them. 
41 

They couldn’t imagine why that would be. And, as you know, my 

father was a union coal miner for 37 years. So I told them, don’t 

worry, nobody ever uses these things. 

But the actual fact is every once in a while, people do have to 

use them. And it has been brought to my attention here that during some random testing of the self-contained self-rescuers, there 

has been a significant amount of, I guess, malfunction in an undetermined percentage of the units. And what are we—what is our 

next generation looking like for those things? Do we have things 

in the pipeline? And what is MSHA doing to try to straighten that 

out? 

Mr. MAIN. One of the things that I try to do quite often is sit 

down with the mining industry and look at where we are at with 

our technology and where we need to go. I just had a meeting with 

the National Mining—Association about 2 weeks ago to discuss this 

very subject to try to get a focus on what our next generation of 

SCSRs are. And we had a pretty healthy discussion about what 

needs to be on the table. 

And I am hopeful that we can organize within the mining community an effort that gets us, more quicker than later, a new generation of devices. And I think we all realize that we have to build 

a device that allows a miner to actually talk when a device is on 

because if you get caught in smoke, a breath can take your life, and 

you lose your buddy. We have got to fix things like that. 

Mr. BUCSHON. Another thing is the time limitation on those. I 

mean, I was—I knew this, but, I mean, you have about an hour, 

ballpark. Is there anything that we can do to potentially extend 

that viability time if you have to use a self-rescuer? 

Mr. MAIN. There is a lot of things in the discussions that we are 

looking at. And one is to put a device on and never have to take 

it out of your mouth and have enough air through add-ons, through 

dockings to get you out of the mine and looking at ways to reconfigure, possibly, the way that we use self-rescuers. 

We have a small industry in terms of the marketing of these 

kind of devices. We have very few manufacturers that want to get 

into the business, which we found out about these communication 

devices. And this is an open discussion we are having with NIOSH 

and the mining industry looking at other types of equipment such 

as, maybe, the military uses where there is a larger market share, 

more availability of devices. But it is something that we are all taking a hard look at to try to figure out what we can develop. 

Mr. BUCSHON. Yes. And, as you know, President Obama recently 

issued an executive order that—wanting every agency to really reexamine there regulations to see where they might be able to be 

changed, modified, eliminated. How is that going in MSHA? Have 

you had a chance yet to look over these things and make sure that 

the regulations we have in place are not outdated and don’t need 

to be updated or eliminated going forward? 

Mr. MAIN. Yes, we have actually a couple regulations on our deck 

that deals with the very topic. One of them is which I talked about 

just briefly in my written testimony. That is the part 100 penalty 

rules. 

And looking at the way that that rule is constructed and the inefficiencies that exist within the—you know, for mine operators, for 
42 

MSHA, for miners, the things that drive inconsistency with the 

way that the rules are applied. And that is something we plan to 

issue as a proposed rule here very shortly. That is probably the top 

one on the list. 

Mr. BUCSHON. Okay. 

Mr. MAIN. And I think it will be an improvement for a lot of reasons. 

Mr. BUCSHON. Yes. Another thing, knowing my dad and his buddies and stuff is, you know, when you institute these, say, specialty 

masks or whatever that might be required in high-dust areas 

and—or any type of mask really, compliance is a pretty big—is a 

potentially big issue. Is there a way with some of these things that 

we can assure compliance, even if you put regulations in place, that 

the miners themselves will comply? 

Mr. MAIN. Yes, I grew up in the mining industry. And I started 

out 18 years old eating a little bit of rock dust and coal dust and 

had a lot of experiences in my life. One of the approaches that I 

have taken with what we do at MSHA, rules to live by as a start, 

we identified rules that are tied with the most common fatalities 

we have in the mining industry. We identified what they were. 

We got all the stakeholders together, the mining industry, miners. And we developed a training program that we train our inspectors to that we put it out to the industry. Everybody has the same 

training program. 

We rolled this out about 3 months in advance before we even 

came through with the compliance side. We built a lot of infrastructure on the front end of this to educate and to get people comfortable with. We have engaged in a similar activity in the metal, 

non-metal industry with sampling. 

But the strategy that we have—we want the industry to be informed. We want to get ahead of the curve and try to get the information out, why are we doing this, what is the importance of it and 

get folks to buy into it and then bring the enforcement phase on 

the tail end of that. 

Mr. WALBERG. I thank the gentleman. The time is expired again. 

And we will move to the gentleman from West Virginia, Mr. 

Rahall. 

Mr. RAHALL. Thank you, Mr. Chairman. I, again, thank you for 

your courtesies you have extended me today. 

I thank you, Mr. Main and Mr. Stricklin and all of your staff, for 

the work that you have done, that you did at UBB and, most importantly, all the rescuers and emergency personnel who put their 

lives on the line going into the mine trying to save other lives. 

I am going to be with the families once again, and they thank 

you, Joe, for the way you have updated the families every couple 

months on your investigation. I will be with them again next 

month. I hope I can tell them that Congress is doing all that we 

can to ensure that miners don’t have to put their lives on the line 

to earn a paycheck. 

We have acted quickly in the past. Following the Sago disaster 

in 2006, all the stakeholders came together. The Congress passed 

the Miner Safety Act. President Bush signed it into law in 2006. 

And without a doubt, the Miner Act has been responsible for making our mines a lot safer today. So Congress can act quickly. 
43 

But we hear a lot today about we have got to wait until your investigation is complete, all the investigations are complete, until 

every nook and cranny is looked into before Congress can once 

again move on safety legislation. I don’t necessarily buy that argument, but I understand those who are promoting that argument. 

And sometimes I am afraid that it is being used as an excuse rather than a reason. 

I would ask you, Mr. Main—and you have talked about preliminary results of your investigation, both within the family meetings 

and here today in your prepared testimony. And we all know there 

are criminal investigations going on at the same time. 

Is the latter holding back the release of some of your work and 

your investigative work? Is it because of the criminal investigation 

that is going on by the FBI and other legal entities? I don’t want 

to step in dangerous ground here. But I think it is worth providing 

the families that type of answer. 

Mr. MAIN. Yes, the first thing that I will note is that you are exactly right, that Sago did help—the MINER Act, rather, of 2006. 

And being on the ground conducting rescue operations, I was very 

thankful about the efforts put in to beef up our mine rescue teams. 

They did a superb job at Upper Big Branch. 

Our inspectors, the state of West Virginia, the mine rescue 

teams—and that helped as a result of the Miner Act. And it was 

done fairly efficiently. I think it was about 6 months after the disaster. 

In terms of where we are at with our investigation, what the expectations are, we don’t know when we are going to be done. And 

we have made a commitment to a request from the Department of 

Justice not to do things that will interfere or jeopardize their investigation. They have asked us to delay our public hearing that we 

plan to hold and delay release of the transcripts. 

And we all know how slow or fast the Justice Department works 

from time to time. And, unfortunately, I wish I could give the families a better answer and everyone a better answer. We just don’t 

know. 

But I think it is going to be months before we are able to release 

the information that we have as a result of what is going on in the 

investigation. And I will tell you this: The families deserve to know 

before and as much as anyone else. 

Mr. RAHALL. Is it your opinion this is more of a serious—more 

serious criminal investigation, the Department of Justice investigation, than you have seen in any previous disasters? 

Mr. MAIN. In my experience, I have to say that I think the Department of Justice is very serious about this investigation and getting to the bottom of things that they believe they need to get to 

the bottom of. And I can’t speak for them, but I truly believe this 

is a very serious investigation. 

I think they are approaching it the same way that we are. For 

the things that they are tasked with, I think they want to find out 

what it is that went wrong that they need to deal with. And I can 

assure you on our side, we are going to not only turn over every 

rock, but pry it apart to understand what went wrong. 

Mr. RAHALL. Thank you. 

Thank you, Mr. Chairman. 
44 

Mr. WALBERG. Thank you, Mr. Rahall. 

Holding onto my time, I now turn to Mr. Payne. 

Mr. PAYNE. Thank you very much. 

I, too, took the opportunity to visit a mine several months before 

the big tragedy, I think it was, last year. And certainly, to go 

through the training first in order to go to the mine, secondly, to 

really go down and enter the mine and to be there was quite an 

experience. I would recommend that to everyone on the committee 

as we deal with this because to put yourself in the shoes of those 

miners is really quite an experience. 

And I really have a lot of respect for the courage and for their 

commitment to their work that they continue to do it. The thing 

that was interesting that, having a chance to meet some of the 

workers, they tend to have been the children and grandchildren of 

former miners. I mean, it is part of the breed. They know that 

there is going to be danger, but that is what they do. 

Many of them want their children to go off to college and not do 

it, but every kid doesn’t go to college. And so, there will be others 

to do it. So I really take my hat off to people. As a matter of fact, 

the first labor issues I ever heard of was about the United Mine 

Union, John L. Lewis. 

As a little kid, I recognized he had heavy eyebrows. And I wonder whether that was what you had to have to be a miner. And I 

didn’t have heavy eyebrows. 

But it has always been an issue. And it has been a very important part of moving America forward. But I think that in a lot of 

instances, we don’t do as much as we should for miners. And I just 

wonder with the MSHA’s—the pattern of violation, MSHA has proposed reforms to the pattern of violation regulations. But it is unclear whether MSHA has sufficient legal authority to make effective reforms to the pattern of violation process. 

Let me give you an example. The DOL inspector general urged 

MSHA to look at keeping mines on POV for longer than 90 days 

to ensure that improvements are sticking. His review found that 

performance improvements at mines which received potential pattern of violation letters for the 90-day review period—but compliance fell off after the 90-day review expired. So I wonder do you 

need legislation to extend the pattern of violation process to, say, 

for a year, for example. 

Mr. MAIN. I think we are squeezing out everything we can in the 

current rule as well as in the proposed rule that gets—that has a 

standard crafted to meet the current statute. To do more than that 

is going to take legislation. And I think that is just pretty much 

that simple. And I think there is some different models that were 

crafted that moved the pattern of violations process away from the 

current structure of the standard to help fix the kind of problems 

that you are talking about. 

And if you want to move beyond what we are doing on the current standards, you are going to have to change the standard. I 

know we are talking about coal mines, but this is a standard that 

applies to the entire mining industry. And there is, I think, two of 

the 14 mines were metal, non-metal mines. And I just want to sort 

of bring folks up to speed that may or may not know the industry 

that well. 
45 

But if you look back at the last 20 years in the mining industry, 

we have had more miners die at these non-coal mines, at metal, 

non-metal mines, than we have at coal mines. And I know this is 

an issue that comes up from time to time about the work that we 

do on that side. In applying the pattern and other enforcement actions, the impact inspections, this is a side of the industry that 

holds the most mining deaths as opposed to coal. 

Mr. PAYNE. The inspector general also recommended that MSHA 

use citations rather than final orders to determine whether there 

is a pattern of violation at a mine. Your proposed rule includes this 

recommendation. However, some industry participants have argued 

that this deprives them of due process because they will have to 

litigate each citation before having it count toward history of violation. 

Is this rule compromising operator due process rights, in your 

opinion? 

Mr. WALBERG. I am sorry. The gentleman’s time has expired. 

And we will have to get that answer, maybe, in—— 

Mr. PAYNE. Can he say yes or no? 

Mr. WALBERG. Yes or no? 

Mr. MAIN. I apologize. I was trying to catch the question. 

Mr. PAYNE. Okay. Well, we will give it to you. You can get it to 

me in writing. 

Mr. MAIN. Okay. Okay. 

Mr. PAYNE. All right. Thanks. 

Mr. WALBERG. Mr. Secretary, thank you for your time and diligence at the table today. Let me just give a couple final questions 

here. In your testimony, it highlights changes made to the pattern 

of violations criteria in 2010. The POV proposed rule suggests that 

mine operators will be judged based on POV criteria. 

However, that criteria is not in the proposal. And so, will the criteria be in the 2010 revision? If not, what criteria will be used? 

And will it be made public for stakeholder input? 

Mr. MAIN. Okay. And I apologize. Was the basis of your question 

what criteria we are going to use for 2010 for the next—— 

Mr. WALBERG. For 2010 the criteria is not in the present POV 

proposal. That is indicated as there. Will it be in the 2010 revision? 

And if not—— 

Mr. MAIN. Yes, I should probably answer the question this way. 

If we do another pattern of violation, we will do it under the current rule. And assuming that the new rule would not be completed 

by the timeline, which is by the end of this year, we would be using 

the current regulation to apply the next pattern of violation. And 

the criteria is published for that. Okay? 

In terms of the proposed rule, we anticipate we are going to get 

comments and responses back from the industry and stakeholders 

about what should be in that criteria. We had made a commitment 

to the inspector general as part of a review of the pattern of violation process to have a discussion with the stakeholders about the 

criteria that is used. And we fully expect to do that. But I think 

for the short-term, one would expect the current rule to be used because the new rule as not conceived would be completed by that 

time. 
46 

Mr. WALBERG. Okay. One of the reasons the mine safety and 

health review commission is facing a backlog in citations is due to 

the elimination of the conference process. Your testimony before 

the committee last February suggested this was one area that 

MSHA was prepared to reengage in. 

Last August, you initiated a pilot program to address the breakdown in the conference process. Can you tell us how that pilot 

project is working? And do you believe there will be a way to reinstate the conference process in the short-term? 

Mr. MAIN. Yes. When I testified here February of last year, this 

is something I talked about, which was revamping the whole conferencing process. We had it on the track to develop a bit more 

quickly. I think when Upper Big Branch—when the disaster happened at—it slowed that model down a little bit. But nonetheless, 

we was able to implement a pilot program. 

And we chose three districts of which to conduct the pilot. And 

it would be—well, the pilot actually involved creating a process 

where mine operators could raise with MSHA at the district level 

concerns they had about the citations or orders issued and have an 

opportunity to settle those out before they become an issue of litigation and resolve those. 

We have since concluded those pilots. I had a meeting with the 

entire—I shouldn’t say the entire—the representatives of the mining industry about 2 weeks ago—the National Mining Association, 

the Bituminous Coal Operators Association, Sand and Gravel Association and others and miners unions—to discuss what we are 

doing with the pilot, the information that we generally found thus 

far. And we are doing an evaluation with all the operators that 

participated. 

And those who didn’t participate, which was a surprise, we identified a number of mine operators chose not to use that pre-contest 

process. We are in the process of evaluating that. Mine operators 

are going to be contacted probably over the next month to get back 

information. And we are going to use that to develop a pre-contest 

conferencing process. 

I will tell you up front, I mean, we are looking at a resource issue 

here because we have to take care of the backlog which exists with 

an amount of our staff. And we are trying to figure out how we set 

this up as a separate pre-contest model. But that is the status of 

where it is at. Hopefully, over the next 2 to 3 months, that we will 

be able to provide some guidance about where we are going to go 

with the program. 

Mr. WALBERG. We look forward to that information as it comes. 

Well, thank you. 

I would like to thank, again, Assistant Secretary Main for taking 

the time to testify before the subcommittee today. 

I appreciate the efforts of the subcommittee and attention to the 

detail as well as our two members from West Virginia who had— 

who joined us as well today. And so, at this time, I would recognize 

the ranking member for any closing remarks. 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

Mr. Main, thank you for being here. Your testimony has informed us about the many, many efforts that MSHA has underway 
47 

to protect miners and the obstacles that you face without additional 

legislative authorities. 

Mr. Chairman, there are many responsible mine operators. And 

we know that. However, it is at the peril of America’s miners and 

against expert judgment if we ignore Mr. Main’s plea for legislation 

to help deal with that subject of mine operators who chronically 

violate our mine safety standards and allow them to put miners’ 

safety in the bull’s eye. 

The 1-year anniversary of the Upper Big Branch explosion is fast 

upon us. And it had not gone unnoticed that the Congress has 

failed to pass legislation to prevent tragedies like this from happening again. This is unacceptable. 

The least we can do for these families is to work cooperatively 

together to fix the deficiencies in mine safety. At the same time, 

we can’t ignore a major problem inherited by Mr. Main that requires resources: a growing backlog of mine safety cases lagging for 

2 to 3 years at the mine safety review commission. Last year, 

MSHA received supplemental funds to create backlog centers. The 

review commission hired six new judges. 

However, the Republicans’ continuing resolution eliminated funding requested by the administration to reduce the backlog this fiscal year. This is not just a paperwork backlog. The backlog is undermining MSHA’s ability to use its existing tools to address serial 

violators who endanger miners. 

Mr. Chairman, I remain hopeful that we can address MSHA’s resources needs and will work together to do that. Thank you. 

Mr. WALBERG. Thank you, Ms. Woolsey. And I certainly make a 

commitment that we will attempt to deal with the issues and concern. 

And though we come to a year anniversary soon for the tragic 

mine event, I hope there is appreciation for the speed in which we 

are moving to address these issues by having hearings such as the 

one today, by dealing with a budget crisis that is in place and 

searching for the core criteria, core funding sources and needs that 

we have, that we can move forward in an economic climate in this 

country that benefits all, including the hard-working miners. 

I spent some time as a steelworker in a furnace division melting 

steel and in dusty situations, dangerous situations as well that 

aren’t totally comparable, as I understand, to a mine. But I also 

understand that people that work there, whether it be in a steel 

mill that I worked in or whether it is in a mine, want to carry on 

their jobs for their children, for their future. 

They want to come home at night. They want to work in a climate that doesn’t necessarily put them at risk for future disease 

and problem. We all know that as we work together, we have to 

make those decisions that result in an economic situation and a social policy situation that is good for all of us. 

I think in getting to the bottom of issues that we are addressing 

today—and, Mr. Secretary, I would thank you again for being here, 

but also remind you that we would like to have that whistleblower 

data so we can add that to our resources so we understand the full 

perspective of what is needed to do in advancing policy that is good 

for those who work in our mining industry and hopefully a mining 
48 

industry that allows us the energy future that this country ought 

to have as well. 

Without those mines being open, without those miners working 

safely and successfully in the mines, we won’t have that opportunity as well. So we will keep moving on. We hope to go down into 

a mine. I certainly want that experience. And I think there are a 

number of my committee members that would appreciate that as 

well. 

We want to understand what the safety protections available are, 

where the malfunctions are, what you are actually looking at in a 

mine situation. And so, that will definitely be part of our process. 

There being no further business, the committee stands adjourned. 

[An additional submission of Ms. Woolsey follows:] 

[An additional submission of Mr. Main follows:] 

DISPOSITION OF COMPLAINTS FILED UNDER SECTION 105(c) OF THE MINE ACT 

Section 105(c) Complaints/Investigations FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 

Complaints Received ..................................................................................... 126 154 171 169 48 

No Violation Found ............................................................................... 91 119 121 113 14 

Complaint Withdrawn/General ............................................................. 4 4 13 14 4 

Complaint Withdrawn/Satisfied ........................................................... 18 17 25 11 2 

Currently Open ..................................................................................... 0 0 0 0 28 

Violation Found .................................................................................... 13 14 12 28 0 

DISPOSITION OF FMSHRC DISCRIMINATION LOSES 

Favorable Decision/Settlement ...................................................................... 11 11 4 4 0 

No violation ................................................................................................... 2 1 0 0 0 

Withdrawn (while at FMSHRC) ...................................................................... 0 0 0 0 0 

Pending at FMSHRC ...................................................................................... 0 2 8 24 0 

INDEPENDENTLY APPEALED BY COMPLAINANT 

Independent Appeals Filed ............................................................................ 12 15 15 7 2 

Favorable Decision/Settlement ...................................................................... 7 2 1 1 0 

Decision/Settlement—No violation ............................................................... 4 4 1 0 0 

Withdrawn (while at FMSHRC) ...................................................................... 0 4 5 5 2 
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DISPOSITION OF COMPLAINTS FILED UNDER SECTION 105(c) OF THE MINE ACT—Continued 

Section 105(c) Complaints/Investigations FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 

Pending at FMSHRC ...................................................................................... 1 3 7 1 0 

DISPOSITION OF TEMPORARY REINSTATEMENT (TR) REQUESTS 

Complaints that Included TR Requests ........................................................ 32 36 53 66 33 

TR Sought ...................................................................................................... 7 4 14 20 8 

Granted ................................................................................................. 3 2 8 11 1 

Approved Settlement ............................................................................ 4 1 5 3 0 

Denied/Dismissed ................................................................................. 0 1 1 1 0 

Pending ................................................................................................ 0 0 0 5 7 

Withdrawn/General ........................................................................................ 4 0 7 12 3 

Withdrawn/Satisfied ...................................................................................... 5 5 7 1 2 

TR not sought ............................................................................................... 16 27 25 33 14 

Investigation ongoing .................................................................................... 0 0 0 0 6 

Disposition of Complaints Filed Under Section 105(c) of the Mine Act 

SECTION 105(C) COMPLAINTS

Complaints received—Complaint was received in the field operations. Alleged 

types of discrimination for exercising rights guaranteed by the Mine Act include but 

are not limited to: 

• Discharge 

• Interference (suspension, harassment/intimidation, reduction in pay, denial of 

overtime, etc.) 

• Applicant for employment (alleged blacklisting, denial of employment) 

No Violation Found—MSHA closed the investigation after finding no violation of 

Section 105(c), usually for one of the following reasons: 

• MSHA’s investigation of miner’s complaint was unable to establish a prima 

facie case under the Mine Act 

• Some adverse action was taken against the miner but there was no evidence 

the miner engaged in protected activity 

• Evidence of protected activity and adverse action found, but no nexus establishing retaliation (insufficient evidence establishing a connection between the miner’s protected activity and the adverse action taken) 

There appears to be retaliation or discrimination but not under the Mine Act 

(complaint covered under another federal or state law (FLSA, OSHA, NLRA, etc.) 

In these instances, the case is referred to the appropriate agency for review and determination. 

Complaint withdrawn/General—The complaint was withdrawn by complainant for 

general reasons: 

• Complainant no longer wishes to pursue complaint and signs a waiver to discontinue. (Usually no explanation is given) 

Complaint withdrawn/Satisfied—Complaint was withdrawn by complainant after 

complaint has been satisfied 

• Complainant no longer wishes to pursue complaint because he or she and company has reached a settlement (making the miner whole). The merits case is considered resolved and not filed with the Federal Mine Safety and Health Review Commission (FMSHRC). 

Currently Open—The case is still under investigation or review. 

Violation Found—The Complaint is found to have merit following an investigation 

and action was filed by the Secretary of Labor with the FMSHRC under Section 

105(c)(2) 

DISPOSITION OF FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION (FMSHRC)

DISCRIMINATION CASES

Favorable Decision/Settlement—Case resulted in a favorable decision after hearing or favorable settlement approved by an Administrative Law Judge (ALJ). 

No Violation—Case resulted in an unfavorable decision after hearing. 

Withdrawn (while at FMSHRC)—Case withdrawn by complainant or the Secretary prior to decision. Complaint is not pursued. 

Pending at FMSHRC—A hearing or ALJ Decision is pending. 
50 

DISPOSITIONS OF INDEPENDENTLY APPEALED DISCRIMINATION COMPLAINTS FILED BY

COMPLAINANT—SECTION 105(C)(3)

These are cases that MSHA does not pursue after investigation and the Complainant brings his/her own action before the Commission. 

Decision/Settlement—Case resulted in favorable decisions after hearing or a favorable settlement was approved by an Administrative Law Judge (ALJ). 

No Violation—The case resulted in an unfavorable decision after hearing. 

Withdrawn (while at FMSHRC)—Case was withdrawn by complainant or the Secretary after case is filed with FMSHRC before hearing. Complaint is not pursued. 

Pending at FMSHRC—A hearing or ALJ Decision is pending. 

DISPOSITION OF TEMPORARY REINSTATEMENT (TR) REQUESTS

Complaints that Included TR Requests—Cases where Temporary Reinstatement 

was requested. 

TR Sought—The Secretary filed an application for TR with FMSHRC following a 

preliminary investigation. 

• Dispositions 

• Granted—working or economic relief ordered by ALJ 

• Approved Settlement—merits case resolved during TR process and approved by 

ALJ 

• Dismissed—Unfavorable decision (TR not granted by ALJ) 

• Pending—Decision is pending 

Withdrawn/General—The request for TR was withdrawn by complainant (no reason given). 

Withdrawn/Satisfied—The request for TR was withdrawn by complainant (reinstated/made whole by company without MSHA involvement). 

TR not Sought—The Secretary did not file an application for a TR because no 

prima facie case has been alleged. Examples include: 

• No protected activity 

• Individual not a miner, etc. 

Investigation Ongoing—Determination to proceed with TR on Miner’s behalf still 

pending. 

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

U.S. CONGRESS, 

Washington, DC, March 18, 2011. 

Hon. JOSEPH A. MAIN, Assistant Secretary, 

Mine Safety and Health Administration, 1100 Wilson Boulevard, Arlington, VA 

22209–3939. 

DEAR ASSISTANT SECRETARY MAIN: Thank you for testifying before the Subcommittee on Workforce Protection at a hearing entitled, ‘‘Examining Recent Regulatory and Enforcement Actions of the Mine Safety and Health Administration,’’ on 

March 3, 2011. I appreciate your participation. 

Enclosed are additional questions submitted by members of the Subcommittee following the hearing. Please provide written responses no later than April 1, 2011 for 

inclusion in the official hearing record. Responses should be sent to Ryan Kearney 

of the Committee staff who can be contacted at (202) 225-4527. 

Thank you again for your contribution to the work of the Subcommittee. 

Sincerely, 

TIM WALBERG, Chairman, 

Subcommittee on Workforce Protections. 

REPRESENTATIVE TODD ROKITA (R–IN)

1. Mr. Main, you have stated that I am confusing the data that has been requested by stakeholders in relation to MSHA’s development of the respirable coal 

dust regulation. You believe that I, other Members of Congress, and stakeholders 

are requesting other additional data that National Institute for Occupational Safety 

and Health (NIOSH) used to develop their findings and you say that data is not 

relevant because you did not rely on such data when developing the regulation. Two 

points I would like you to address: 

A. You mention that NIOSH used this data to develop their findings. NIOSH’s 

findings were in part the basis of the 1995 NIOSH report. By MSHA’s own admission, this report was used as the basis of this rule. Did MSHA then not have access 

to this hard data when preparing and writing the regulation? And if MSHA did 
51 

have access, will you work with Congress and my office to have the data released 

by NIOSH to stakeholders in a timely manner? 

B. You somehow also noted that you did not rely on this data to develop this rule 

even though MSHA admits it used the 1995 NIOSH report for which NIOSH indicated the data was used. However, you did not answer my question about whether 

or not you had access to this data directly. Yes or no, did MSHA have access to this 

NIOSH data when developing this rule? 

2. The data used for this rule is from 1995. Are we to believe that this data is 

relevant in 2011 and should be used as the basis for this rule? It is my understanding that newer findings and data prepared by NIOSH exists but has not yet 

been released. Can MSHA explain why more recent data would not be used to inform this rule? 

3. As part of rulemaking, MSHA prepares economic analyses in order to comply 

with congressionally mandated procedures on rulemaking. The objective of these 

laws is to eliminate excessive and unjustified burdens on small businesses, and to 

ensure that regulations are designed to control their cumulative effects on small 

businesses. MSHA has estimated that the dust rule will cost less than $100 million, 

yet statements from experts at the public hearings have placed the burden of the 

regulation at well over $1 billion. Can you explain the discrepancies? Can MSHA 

provide for the Committee the analyses, how it was conducted and the assumptions 

made, along with the backgrounds and training of the personnel involved? 

REPRESENTATIVE DONALD PAYNE (D–NJ)

1. Some industry participants have argued that using citations instead of final orders for determining past history of violations for purposes of Pattern of Violations 

(POV) deprives them of ‘‘due process.’’ Will this approach compromise operator due 

process rights? What are operator due process rights to challenge a notice of POV, 

if citations are used instead of violations? 
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Prepared Statement of Hon. Nick J. Rahall, II, a Representative in 

Congress From the State of West Virginia 

Chairman Walberg, Ranking Member Woolsey, I thank you and all the Members 

of the Subcommittee for affording me the privilege of sitting with you today. I join 

in welcoming Secretary Main. 

In just over a month, on April 5th, we will reach the one-year anniversary of the 

Upper Big Branch Mine Disaster. For me, that is a personal and difficult milestone. 

That mine is in my District—not far from my home. I spent the days after that tragedy waiting, hour by hour, with the family members of the 29 victims, hoping for 

miracle that never came. 

Since that tragic day, Members of this Committee and I have heard numerous 

horror stories about the way that mine was managed. Just this week, the Justice 
58 

Department handed down its first indictment, confirming reports of illegal management activities at that mine. 

April 5th should be a nagging reminder to all of us of the obligation we have to 

ensure that the circumstances that led to that tragedy are not repeated. The families of the miners at UBB are owed closure and the comfort of knowing that some 

good will come of the tragedy that took their loved ones. 

I continue to believe that it is possible to reach consensus on a bill—a necessary, 

reasonable bill—that will focus on the worst of the worst offenders, prevent more 

tragedies, and save precious lives in our coalfields. And I believe that there are 

times that it is best to effect change through the legislative process—where the people have a voice—rather than allowing agencies a free-hand to make policy changes 

through regulation and guidance that change with the political winds. 

I have heard the argument that we must wait until the every nook and cranny 

of that disaster is fully, absolutely, and finally investigated before we pass any new 

legislation. One year after the UBB tragedy, that argument sounds more like an excuse than a reason. 

I remind my colleagues that the Sago disaster happened in January 2006. President Bush signed the MINER Act in June 2006. And the MSHA report on the cause 

of the disaster was issued in May 2007. Without a doubt, the MINER Act has improved the chances for saving lives following an accident. 

Mr. Chairman, again, I thank the Members of this Subcommittee for their courtesy. I never want to experience another tragedy like the one at UBB. I never again 

want to have to look in the faces of wives, children, or grandparents whose loved 

ones have perished in a preventable mine disaster. When I see the families of the 

miners who perished at UBB—and I expect to see them early next month on the 

anniversary of that tragedy—I want to be able to tell them this Congress is doing 

all that it can to ensure that miners don’t have to put their lives at risk to earn 

a paycheck. 

[Whereupon, at 11:47 a.m., the subcommittee was adjourned.] 

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