69–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–457 

SUPPLEMENTAL MINE IMPROVEMENT AND NEW 

EMERGENCY RESPONSE ACT OF 2007 

NOVEMBER 15, 2007.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 2768] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 2768) to establish improved mandatory standards to 

protect miners during emergencies, and for other purposes, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Supplemental Mine Improvement 

and New Emergency Response Act of 2007’’ or the ‘‘S–MINER Act’’. 

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Definitions; references. 

Sec. 4. Supplementing emergency response plans. 

Sec. 5. Supplementing enforcement authority. 

Sec. 6. Supplementing rescue, recovery, and incident investigation authority. 

Sec. 7. Respirable dust standards. 

Sec. 8. Other health requirement. 

SEC. 2. FINDINGS. 

Congress finds that— 

(1) while the MINER Act of 2006 (Public Law 109–236) was an essential first 

step in addressing the many health and safety hazards that miners still face, 


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supplemental action is necessary and feasible to better protect miners in coal 

and other mines; 

(2) essential standards to protect miner health established by the Federal 

Mine Safety and Health Act of 1977 are out of date after 40 years, posing a 

significant threat to miner health; and 

(3) the Secretary of Labor has failed in recent years to adequately fulfill the 

Secretary’s obligations under the Federal Mine Safety and Health Act of 1977 

(30 U.S.C. 801 et seq.), additional Congressional intervention is needed. 

SEC. 3. DEFINITIONS; REFERENCES. 

(a) DEFINITIONS.—As used in this Act— (1) the term ‘‘Secretary’’ refers to the Secretary of Labor; and 

(2) any other term used in this Act that is defined in section 3 of the Federal 

Mine Safety and Health Act of 1977 (30 U.S.C. 802) shall have the meaning 

given the term in such section. 

(b) REFERENCES.—Except as otherwise expressly provided, whenever in this Act 

an amendment or repeal is expressed in terms of an amendment to, or repeal of, 

a section or other provision, the reference shall be considered to be made to a section or other provision of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 

801 et seq.). 

SEC. 4. SUPPLEMENTING EMERGENCY RESPONSE PLANS. 

(a) POST ACCIDENT COMMUNICATIONS.—Section 316(b)(2)(F)(ii) (30 U.S.C. 

876(b)(2)(F)(ii)) is amended— (1) by striking ‘‘Not later than’’ and inserting the following: ‘‘(II) Not later than’’; and 

(2) by inserting after the clause designation the following: ‘‘(I) Not later than 120 days after the enactment of the S–MINER 

Act, a plan shall, to be in approved status, provide for a post accident communication system between underground and surface personnel, and for an electronic tracking system permitting surface 

personnel to determine the location of any persons trapped underground, that utilizes a system at least as effective as a ‘leaky feed- er’ or wireless mesh type communication and tracking system currently in use in the industry. These systems shall be enhanced 

physically, electronically, or redundantly, to improve their survivability in the event of a mine disaster. In addition, to be in approved status, an emergency response plan must be revised 

promptly to incorporate new technology which the National Institute for Occupational Safety and Health certifies can be added to 

the existing system to improve its ability to facilitate post-accident 

communication with or tracking of miners. No miner shall be disciplined based on information obtained from an electronic communications and tracking system.’’. 

(b) UNDERGROUND REFUGES.—Section 316(b)(2)(E) (30 U.S.C. 876(b)(2)(E)) is 

amended by adding at the end the following: 

‘‘(vi) Not later than June 15, 2008, the Secretary shall issue interim 

final regulations, consistent with the design criteria recommended by 

National Institute for Occupational Safety and Health in its report pursuant to section 13(b)(1) of the MINER Act, and subject to the requirements of the next sentence, requiring each emergency response plan to 

provide for the installation of portable rescue chambers meeting National Institute for Occupational Safety and Health design criteria, or 

refuge shelters carved out of the mine workings and sealed with bulkheads meeting National Institute for Occupational Safety and Health 

design criteria, or other refuge designs recommended by National Institute for Occupational Safety and Health that provide miners with 

equivalent or better protection, in the working areas of underground 

coal mines within 60 days following plan approval. In addition, a plan 

shall provide for the maintenance of a mobile emergency shelter within 

500 feet of the nearest working face in each working section of an underground coal mine.’’. 

(c) IMPROVEMENTS TO SEALS, VENTILATION CONTROLS, AND ROCK DUSTING TO

LIMIT THE DAMAGE FROM EXPLOSIONS.—

(1) REPEAL.—The MINER Act (30 U.S.C. 801 note) is amended by striking 

section 10 (concerning sealing of abandoned areas). 

(2) SEALS.—Section 303(z) (30 U.S.C. 863(z)) is amended by adding at the end 

the following: 

‘‘(4)(A) The Secretary shall inspect all seals under construction after the date of 

enactment of the S–MINER Act, during at least part of their construction, to ensure 


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the mine operator is complying with the approved seal plan, and shall develop an 

inspection protocol for this purpose. ‘‘(B) Not later than 3 months of the date of enactment of the S–MINER Act, the 

Secretary shall issue final rules regarding approval, design, construction, inspection, 

maintenance and monitoring of underground coal mine seals which shall meet the 

requirements of this paragraph. Except as otherwise provided by this paragraph, 

these regulations shall implement the most recent recommendations of the National 

Institute of Occupational Safety and Health concerning seal design, construction, inspection, maintenance and monitoring. The regulations shall also provide that all 

seals in a mine shall be monitored if they are not designed or installed to withstand 

a constant total pressure of 240 pounds per square inch, using a static structural 

analysis. Monitoring of seals shall be done by continuous monitoring devices within 

one year of the date of enactment of this Act, and prior thereto by qualified personnel at such intervals as the Secretary determines are adequate to ensure safety. 

The Secretary shall require mine operators to utilize a tamper-resistant method to 

retain records of all such monitoring and ensure they are available for examination 

and verification by the agency. Monitoring of seals shall be done both by— ‘‘(i) sampling through at least 1 seal in each bank of seals; and 

‘‘(ii) for new seals, unless infeasible due to property rights, sampling through 

a sufficient number of boreholes from the surface to the sealed areas underground to effectively determine the gas concentrations within the area. 

‘‘(C) In addition, the regulations shall provide that—

‘‘(i) seal sampling pipes shall be composed of materials that minimize the risk 

of transmitting any electrical charge, and no conductive materials may be used 

to line boreholes within three feet of the surface; 

‘‘(ii) an action plan for sealing and repair be established that will, among any 

other requirements, include specific actions the mine operator will take to protect miners during the critical time period immediately after sealing or repair 

takes place, and which shall be reviewed by personnel from the Mine Safety and 

Health Administration who have the required expertise prior to approval; and 

‘‘(iii) methane pressures behind any seal required to be monitored shall be 

maintained in such a manner as ensure that normal pressure variations that 

can be reasonably anticipated in the area of the seal do not bring the methaneair mixture into an appropriate safety range surrounding the known explosive 

range of such mixtures.’’. 

(3) VENTILATION CONTROLS.—Section 303(c) (30 U.S.C. 863) is amended by inserting at the end the following new paragraph: 

‘‘(4) Not later than 1 year after the date of enactment of the S–MINER Act, the 

Secretary shall publish interim final regulations to enhance the survivability of underground mine ventilation controls. The Secretary shall require that stoppings be 

constructed using solid concrete blocks laid wet and sealed with an appropriate 

bonding agent on at least the side subjected to the velocity of the intake air coursing 

through the entry, except that in the case of stoppings constructed during barrier 

reduction and pillar removal operations, such stoppings may be constructed using 

hollow block and an appropriate bonding agent.’’. 

(4) ROCK DUSTING.—Section 304(d) (30 U.S.C. 864) is amended by adding at 

the end the following: ‘‘Not later than June 15, 2009, the National Institute for 

Occupational Safety and Health shall issue recommendations as to whether 

changes to these requirements are necessary to ensure an equivalent level of 

protection in light of any changes to the size and composition of coal dust since 

these requirements were established, and the Secretary of Labor shall take appropriate action, including the issuance of an emergency temporary standard if 

warranted, to respond to these recommendations.’’. 

(d) LIMITING CONVEYOR BELT RISKS.—

(1) FLAME RESISTANT CONVEYOR BELTS.—Section 311(h) is amended by adding 

at the end the following: ‘‘Not later than January 31, 2008, the Secretary shall 

publish interim final regulations to ensure that all conveyor belts in use in underground coal mines are replaced no later than December 31, 2012, with belts 

that can meet the flame resistance requirements recommended by the National 

Institute for Occupational Safety and Health, and which limit smoke and toxic 

emissions. Any conveyor belt installed in a coal mine after the date of enactment of the S–MINER Act shall meet such requirements.’’. 

(2) BELT AIR.—Section 303(y) (30 U.S.C. 863) is amended by adding at the end 

the following: 

‘‘(3) Not later than June 20, 2008, the Secretary shall revise the regulations prescribed pursuant to this section to require, in any coal mine, regardless of the date 

on which it was opened, that belt haulage entries not be used to ventilate active 

working places. The Secretary may agree to a modification of this requirement, pursuant to the procedures of section 101(c), if and only if—


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‘‘(A) the mine operator establishes to the satisfaction of the Secretary that significant safety constraints require such usage; and ‘‘(B) the mine operator agrees to comply with criteria established by the Secretary which shall, at a minimum, include the conditions recommended by the 

Technical Study Panel established under section 514. ‘‘(4) Plans that have been approved by the Secretary prior to the date of enactment of the S–MINER Act that permit the use of belt-air to ventilate active working 

places in a mine are permitted to remain in use to complete current mining up until 

the date of issuance of the regulation required pursuant to paragraph (3).’’. (e) PRE-SHIFT REVIEW OF MINE CONDITIONS.—Section 303(d) (30 U.S.C. 863(d)) is 

amended by adding at the end the following new paragraph: ‘‘(3) Not later than 90 days after the date of enactment of the S–MINER Act, all 

mine operators shall be required to implement a communication program at each 

of such operators’ facilities to ensure that each person entering the operation is 

made aware at the start of that person’s shift of the current conditions of the mine 

in general and of that person’s specific worksite in particular. In an effort to facilitate these communications, all agents of the operator who are responsible for ensuring the safe and healthful working conditions at the mine, including mine foremen, 

assistant mine foremen, and mine examiners, shall, upon exiting the mine or workplace, communicate with those replacing them on duty to verbally update them on 

the conditions they observed during their shift, including any conditions that are abnormal or hazardous. Prior to entering the mine or other workplace the on-coming 

agent of the operator shall meet with all members of the crew they are responsible 

for and inform them of the general conditions at the operation and in their specific 

work area. This process shall be completed prior to the start of each shift at the 

operation and recorded in a book designated for that purpose and available for inspection by all interested parties. In the event the operation is idle prior to the start 

of any shift the agent of the operator shall meet with the individual or individuals 

who were responsible for examining the mine to obtain the necessary information.’’. 

(f) ATMOSPHERIC MONITORING SYSTEMS.—Section 317 (30 U.S.C. 877) is amended 

by adding at the end the following: 

‘‘(u) Not later than May 1, 2008, an operator of an underground mine shall install 

atmospheric monitoring systems in all underground areas where miners normally 

work and travel that provide real-time information regarding carbon monoxide levels, and that can, to the maximum extent possible, withstand explosions and fires.’’. 

(g) METHANE MONITORS.—Section 303(h) (30 U.S.C. 863(h)) is amended by redesignating paragraph (2) as paragraph (3), and inserting after paragraph (1) the following new paragraph: 

‘‘(2) Each miner who is working alone for part of a shift shall be equipped with 

a multi-gas detector that measures current levels of methane, oxygen, and carbon 

monoxide.’’. 

(h) LIGHTNING STUDY BY NATIONAL ACADEMY OF SCIENCES.—Not later than 1 year 

after the date of enactment of this Act, the National Academy of Sciences shall submit to the Secretary and to Congress recommendations on—

(1) actions that need to be taken to strengthen existing requirements in law 

or regulations to ensure that miners are protected, to the fullest extent permitted, from the risks of lightning strikes near a mine; 

(2) recommendations for adopting any existing technology to the mining environment to minimize any such risks; and 

(3) research needed for improved technology. 

(i) ROOF AND RIB SUPPORT, BARRIER REDUCTION AND PILLAR EXTRACTION, SPECIAL

ATTENTION TO DEEP MINING.—

(1) AMENDMENTS TO EXISTING LAW.—Section 302 is amended—

(A) by amending the section heading to read ‘‘ROOF AND RIB SUPPORT, 

BARRIER REDUCTION AND PILLAR EXTRACTION, SPECIAL ATTENTION TO DEEP

MINING’’; 

(B) in subsection (a), by inserting after the second sentence the following: 

‘‘The Secretary shall by regulation ensure the appropriate use of roof screen 

in belt entries, travelroads, and designated intake and return escapeways 

in accordance with the requirements of subsection (g).’’; and 

(C) by inserting at the end the following: 

‘‘(g) Where screening is required, at least forty percent of the width of the exposed 

roof shall be screened. Screening to meet the requirements of this section must have 

a load bearing capacity at least equivalent to a load of 2.5 tones between bolts on 

a 4 foot pattern. 

‘‘(h)(1) An operator shall be required to have a current and approved barrier reduction or pillar extraction plan, or both, before performing such activities. The Secretary shall only approve a barrier reduction or pillar extraction plan if it provides 

adequate protection and minimizes the risks for miners engaged in the activity, reVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6621 E:\HR\OC\HR457.XXX HR457

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flecting appropriate engineering analysis, computer simulations, and consultations 

with technical experts in the agency, in the National Institute for Occupational 

Safety and Health, and in the Bureau of Land Management for any mines leasing 

Federal coal resources, and only if the plan complies with any specific requirements 

that may be adopted by the Secretary for barrier reduction or pillar extraction activities including requirements related to the depth of the mine, geology of the mine, 

mine height and methods, and emergency response capabilities. ‘‘(2) A copy of a proposed barrier reduction or pillar extraction plan, or both, shall 

be provided to the authorized representative of miners at least 10 days prior to submission to the Secretary for approval. The authorized representative of miners may 

provide comments to the Secretary who shall respond thereto. ‘‘(3) The Secretary shall establish a special internal review process for operator 

plans to protect miners from the risks addressed by this section when working at 

depths of more than 1500 feet and in other mines with a history of mountain 

bumps. ‘‘(i) Not later than 1 week before the commencement of any barrier reduction or 

pillar extraction operations, the mine operator shall notify the appropriate representative of the Secretary of his intention to begin or resume barrier reduction 

or pillar extraction. The Secretary shall document such notification in writing, and 

shall, before barrier reduction or pillar extraction operations begin, take action to 

ensure that every person who will be participating in such operations is trained in 

the operator’s barrier reduction and/or and pillar extraction plan. The Secretary 

shall observe the barrier reduction or pillar extraction operations for a sufficient period of time to ensure that the mine operator is fully complying with the barrier 

reduction or pillar extraction plan. The Secretary may preclude the commencement 

of such operations or halt such operations at any time the safety of miners comes 

into question.’’. 

(2) STUDY.—Not later than 1 year after the date of enactment of this Act, the 

National Academy of Sciences shall, in consultation with the National Institute 

for Occupational Safety and Health, submit to the Secretary and to Congress 

recommendations for—

(A) actions that need to be taken to strengthen existing requirements in 

law or regulations to ensure that miners are protected, to the fullest extent 

permitted, from ground control hazards, including the special hazards associated with barrier reduction and pillar extraction; 

(B) adopting any existing technology to the mining environment to improve miner protections during barrier reduction and pillar extraction, and 

on research needed for improved technology to improve miner protections 

during such operations; 

(C) adopting any existing technology to the mining environment to improve miner protections during mining at depths below 1000 feet, and on 

research needed for improved technology to improve miner protections during such operations; and 

(D) adopting any existing technology to the mining environment to improve miner protections during secondary mining of coal resources, and on 

research needed for improved technology to improve miner protections during such operations. 

(j) SCSR INSPECTION PROGRAM.—

(1) IN GENERAL.—The Secretary shall—

(A) establish a program to randomly remove and have tested by the National Institute for Occupational Safety and Health field samples of each 

model of self-rescue device used in an underground coal mine in order to 

ensure that the self-rescue devices in coal mine inventories are working in 

accordance with the approval criteria for such devices; 

(B) require a manufacturer of a self-rescue device and the mine operator 

who owns a device to contact the Secretary immediately upon notification 

of any potential problem with any such device, and provide a copy of such 

notice to the representative of miners at the affected operation; and 

(C) notify immediately all operators of underground coal mines if the Secretary detects or is advised of any problems with the self-rescue devices. 

(2) DETERMINATION.—For the purposes of paragraph (1)(A), the National Institute for Occupational Safety and Health shall determine the number of field 

samples of each device to be removed for testing, and the mines from which the 

samples are to be drawn to ensure a random sample is obtained, and shall provide mine operators with self-rescue devices to replace any removed for random 

testing. Should this testing reveal a potential problem with a device that requires additional testing, the Secretary shall remove such additional samples 

from such mines as may be requested by the National Institute for Occupational 

Safety and Health, and it shall be the obligation of mine operators to provide 


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self-rescue devices to promptly replace any removed as a result of such additional testing. 

(k) APPLICATION TO UNDERGROUND METAL AND NONMETAL MINES.—Title II is 

amended by adding at the end the following new section: 

‘‘SEC. 207. APPLICATION TO UNDERGROUND METAL AND NONMETAL MINES. 

‘‘(a) CONVEYOR BELTS.—The regulations to be issued pursuant to section 311(h) 

concerning conveyor belts shall also provide that all conveyor belts in use in underground metal and nonmetal mines are to be replaced, on the same schedule, with 

belts that can meet the flame resistance requirements recommended by the National Institute for Occupational Safety and Health, and which limit smoke and 

toxic emissions. Any conveyor belt installed in an underground metal or nonmetal 

mine after the date of enactment of the S–MINER Act shall meet such requirements. 

‘‘(b) SEALS.—The regulations to be issued pursuant to section 303(z)(2) concerning 

the approval, design, construction, inspection, maintenance and monitoring of underground coal mine seals shall make the same rules applicable to seals in underground metal and nonmetal mines which have been classified by the Secretary as 

a category I, III, or V mine pursuant to section 57.22003 of title 30, Code of Federal 

Regulations, because they naturally emit defined quantities of methane. 

‘‘(c) ADVISORY COMMITTEE.—Promptly after the date of enactment of the S–

MINER Act The Secretary shall establish an advisory committee to provide recommendations as to the need to revise the regulations applicable to underground 

metal and nonmetal mines to ensure that miners in such mines are as protected 

in emergency situations as will be underground coal miners following the full implementation of the MINER Act, the provisions of the S–MINER Act, and related actions by the Secretary. The advisory committee shall be established pursuant to the 

Advisory Committee Act, and shall provide recommendations to the Secretary and 

to Congress not later than 21 months after the date of enactment of this Act, including recommendations as to any action by Congress that could facilitate the goal of 

providing equivalent protections to miners in underground metal and nonmetal 

mines.’’. 

(l) APPROVAL CENTER PRIORITIES.—The Secretary shall expedite the process for 

approving any—

(1) self-rescue device that permits the replenishment of oxygen without requiring the device user to remove the device; and 

(2) underground communication device that provides for communication between underground and surface personnel via a wireless two-way medium. 

(m) TECHNOLOGY AND MINE EMERGENCY HEALTH AND SAFETY RESEARCH PRIORITIES.—In implementing its research activities in the 5-year period beginning on the 

date of enactment of this Act, the National Institute for Occupational Safety and 

Health shall give due consideration to new technologies, and existing technologies 

that could be adapted for use in underground coal or other mines, that could facilitate the survival of miners in a mining emergency. Such technologies include—

(1) self-contained self-rescue devices capable of delivering enhanced performance; 

(2) improved battery capacity and common connection specifications to enable 

emergency communication devices for miners to be run from the same portable 

power source as a headlamp, continuous dust monitor, or other device carried 

by a miner; 

(3) improved technology for assisting mine rescue teams, including devices to 

enhance vision during rescue or recovery operations; 

(4) improved technology, and improved protocols for the use of existing technologies, to enable conditions underground to be assessed promptly and continuously in emergencies, so as to facilitate the determination by appropriate officials of the instructions to provide both to miners trapped underground and to 

mine rescue teams and others engaged in rescue efforts; 

(5) improvements to underground mine ventilation controls separating mine 

entries to be more resistant to mine fires and explosions, particularly in those 

entries used for miner escapeways; 

(6) mine-wide monitoring systems and strategies that can monitor mine 

gases, oxygen, air flows, and air quantities at strategic locations throughout the 

mine that would be functional during normal mining operations and following 

mine fires, explosions, roof falls, and mine bursts, including systems utilizing 

monitoring sensors that transfer data to the mine surface and the installation 

of tubing to draw mine gas samples that are distributed throughout the mine 

and can quickly deliver samples to the mine surface; and 

(7) protective strategies for the placement of equipment, cables, and devices 

that are to be utilized during mine emergencies such as communication sysVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6621 E:\HR\OC\HR457.XXX HR457

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tems, oxygen supplies, and mine atmosphere monitoring systems, to protect 

them from mine fires, roof falls, explosions, and other damage. 

SEC. 5. SUPPLEMENTING ENFORCEMENT AUTHORITY. 

(a) AUTHORITY OF INSPECTORS.—Section 103(a) (30 U.S.C. 813(a)) is amended by 

adding at the end the following: ‘‘No person shall limit or otherwise prevent the Secretary from entry on a coal or other mine, or interfere with the Secretary’s inspection activities, investigative activities, or rescue or recovery activities.’’. (b) TRANSITION TO A NEW GENERATION OF INSPECTORS.—Section 505 (30 U.S.C. 

954) is amended— (1) by striking ‘‘The Secretary’’ the first place it appears and inserting ‘‘(a) 

The Secretary’’; and 

(2) by adding at the end the following: ‘‘(b) Within 270 days of the enactment of the S–MINER Act, the Secretary shall 

establish a Master Inspector program to ensure that the most experienced and 

skilled employees in the Nation have the incentive, in terms of responsibilities and 

pay, to serve as mine safety and health inspectors in this Nation’s mines. ‘‘(c) In order to ensure that the Secretary has adequate time to provide that a sufficient number of qualified and properly trained inspectors of the Mine Safety and 

Health Administration are in place before any inspectors employed as of the date 

of enactment of the S–MINER Act retire, any ceilings on the number of personnel 

that may be employed by the Administration with respect to mine inspectors are 

abolished for the 5-year period beginning on the date of enactment of such Act. ‘‘(d) In the event that, notwithstanding the actions taken by the Secretary to hire 

and train qualified inspectors, the Secretary is temporarily unable, at any time during the 5-year period beginning on the date of enactment of the S–MINER Act, to 

employ the number of inspectors required to staff all district offices devoted to coal 

mines at the offices’ highest historical levels without transferring personnel from supervisory or plan review activities or diminishing current inspection resources devoted to other types of mines, the Administration is authorized to hire retired inspectors on a contractual basis to conduct mine inspections, and the retirement benefits of such retired inspectors shall not be reduced as a result of such temporary 

contractual employment. ‘‘(e) During the 5-year period beginning on the date of enactment of the S–MINER 

Act, the Secretary shall issue a special report to the appropriate committees of Congress each year, or at such more frequent intervals as the Secretary or any such 

committee may consider appropriate, providing information about the actions being 

taken under this section, the size and training of the inspector workforce at the 

Mine Safety and Health Administration, the level of enforcement activities, and the 

number of requests by individual operators of mines for compliance assistance.’’. (c) OFFICE OF MINER OMBUDSMAN.—Title V is amended by adding at the end the 

following: 

‘‘SEC. 516. OFFICE OF MINER OMBUDSMAN. 

‘‘(a) ESTABLISHMENT OF MINER OMBUDSMAN.—There shall be established, within 

the Office of the Inspector General of the Department of Labor, the position of 

Miner Ombudsman. The President, by and with the advice and consent of the Senate, shall appoint an individual with expertise in mine safety and health to serve 

as the Miner Ombudsman. The Ombudsman shall have authority to hire such personnel as are required to administer his duties in accordance with applicable law, 

provided they meet any general requirements for employment within the Office of 

the Inspector General. 

‘‘(b) DUTIES.—The Miner Ombudsman shall—

‘‘(1) recommend to the Secretary appropriate practices to ensure the confidentiality of the identity of miners, and the families or personal representatives of 

the miners, who contact mine operators, authorized representatives of the miners, the Mine Safety and Health Administration, the Department of Labor, or 

others with information about mine accidents, incidents, injuries, illnesses, possible violations of mandatory health or safety standard violations or plans or 

other mine safety and health concerns; 

‘‘(2) establish a toll-free telephone number and appropriate Internet website 

to permit individuals to confidentially report mine accidents, incidents, injuries, 

illnesses, possible violations of mandatory health or safety standard violations 

or plans or other mine safety and health concerns, and provide plastic wallet 

cards, refrigerator magnets, or similar devices to all mine operators, which mine 

operators shall distribute to all current and new miners, with contact information for such confidential reports, and also provide supplies of these devices to 

miner communities; 

‘‘(3) collect and forward information concerning accidents, incidents, injuries, 

illnesses, possible violations of mandatory health or safety standard violations 


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or plans or other mine safety and health concerns to the appropriate officials 

of the Mine Safety and Health Administration for investigation, or to appropriate officials within the Office of Inspector General for investigation or audit, 

or both, while establishing practices to protect the confidentiality of the identify 

of those who provide such information to the Ombudsman; and ‘‘(4) monitor the Secretary of Labor’s efforts to promptly act upon complaints 

filed by miners under section 105(c) of the Act or pursuant to other programs 

administered by the Department to protect whistleblowers, and report to Congress any recommendations that would enhance such rights or protections. ‘‘(c) AUTHORITY.—All complaints of operator violations of any section of this Act 

or regulations prescribed under this Act that are reported to the Secretary shall be 

forwarded to the Ombudsman for logging and appropriate action, except that this 

requirement shall be implemented in such a way as to avoid interference in any way 

with the ability of the Assistant Secretary for Mine Safety and Health to take 

prompt actions that may be required in such situations. This shall include complaints submitted in writing, via any phone system, or orally, along with all relevant 

information available regarding the complainant. All such information shall be retained in a confidential manner pursuant to the Privacy Act of 1974. The Ombudsman shall use such information to monitor the actions taken to ensure that miners’ complaints are addressed in a timely manner and in compliance with the appropriate statutes and regulations. The Ombudsman shall refer to appropriate personnel within the Office of the Inspector General for further review any case which 

he determines was not handled in such fashion. 

‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—There are hereby authorized to be appropriated to the Ombudsman such sums as may be required for the implementation of his duties out of the sums otherwise made available to the Mine Safety and 

Health Administration for its activities.’’. 

(d) PATTERN OF VIOLATIONS.—

(1) PROMPT IDENTIFICATION OF PATTERN.—Not later than 3 months after the 

date of enactment of this Act, the Secretary shall revise the regulations issued 

by the Secretary under section 104(e) of the Federal Mine Safety and Health 

Act of 1977 (30 U.S.C. 814(e)) as in effect on the day before such date of enactment, so that the regulations provide that—

(A) when a potential pattern of violations is identified by any inspector 

or district manager of the Mine Safety and Health Administration, the operator of the coal or other mine and the authorized representative of miners 

for the mine shall be notified by the inspector or district manager not later 

than 10 days after such identification; and 

(B) after receiving the notification described in subparagraph (A), the appropriate official of the Mine Safety and Health Administration shall 

promptly review any such potential pattern of violations and, not later than 

45 days after receiving such notification, make a final decision as to whether a citation for a violation of section 104(e) of such Act should be issued 

in light of the gravity of the violations and the operator’s conduct in connection therewith. 

(2) IDENTIFICATION OF PATTERN.—Section 104(e)(1) (30 U.S.C. 814(e)(1)) is 

amended by inserting after the first sentence the following: ‘‘In determining 

whether a pattern of violations exists, the Secretary shall give due consideration to all relevant information, such as the gravity of the violations, operator 

negligence, history of violations, the number of inspection shifts the Secretary 

or her agents have spent at the operation, and the frequency of violations per 

number of inspection days spent at the operation.’’. 

(3) TERMINATION OF PATTERN.—Section 104(e)(3) (30 U.S.C. 814(e)(3)) is 

amended by adding at the end the following: ‘‘In addition, if an operator subject 

to paragraphs (1) and (2) demonstrates objective evidence that they are correcting the problems that gave rise to the pattern of violations, and the violation frequency rate for such operator declines significantly for a period of 180 

days, the withdrawal order provisions of paragraphs (1) and (2) shall no longer 

apply.’’. 

(4) FINE FOR A PATTERN OF VIOLATIONS.—Section 110 (30 U.S.C. 820) is 

amended—

(A) by redesignating subsections (i) through (l) as subsections (j) through 

(m), respectively; and 

(B) by inserting after subsection (h) the following: 

‘‘(i)(1) If the Secretary determines that a pattern of violations under section 104(e) 

exists, the Secretary shall assess a penalty, in addition to any other penalty authorized in this Act for a violation of such section, of not less than $50,000 nor more 

than $250,000. All operators of the mine, including any corporate owners, shall be 

jointly and severally liable for such penalty. The amount of the assessment under 


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9 

this paragraph shall be designed to ensure a change in the future conduct of the 

operators and corporate owners of such mine with respect to mine safety and health, 

given the overall resources of such operators. Notwithstanding subsection (k) or section 113, a penalty assessed by the Secretary under this paragraph may not be reduced by the Commission. 

‘‘(2) In addition to the authority to withdraw miners from an area of a coal or 

other mine pursuant to section 104(e), the Secretary shall withdraw all miners from 

the entire mine when any pattern of violations has been determined to exist until 

such time as the Secretary certifies that all identified violations have been corrected 

and the operator has agreed to abide by a written plan approved by the Mine Safety 

and Health Administration to ensure that such a pattern of conduct will not recur.’’. 

(e) NOTIFICATION OF ABATEMENT.—Section 104(b) (30 U.S.C. 814(b)) is amended—

(1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; 

(2) by striking ‘‘If,’’ and inserting: 

‘‘(2) If,’’; and 

(3) by inserting after the subsection designation the following: 

‘‘(1) An operator issued a citation pursuant to subsection (a) shall notify the Secretary that the operator has abated the violation involved. If such operator fails to 

provide such a notice to the Secretary within the abatement time as provided for 

in the citation, the Secretary shall issue an order that requires the operator (or the 

agent of the operator) to immediately cause all persons, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, 

such area as the Secretary determines until an authorized representative of the Secretary determines that such violation has been abated. Notwithstanding any operator notice, no violation shall be determined to be abated until an authorized representative of the Secretary visits the site and determines such violation has been 

fully abated.’’. 

(f) FAILURE TO TIMELY PAY PENALTY ASSESSMENTS.—Section 105(a) (30 U.S.C. 

815(a)) is amended by striking the third sentence and inserting the following: ‘‘The 

operator shall, not later than 30 days from the receipt of the notification of a citation issued by the Secretary, notify the Secretary that the operator intends to contest the citation or proposed assessment of a penalty, and the operator shall place 

in escrow with the Secretary the amount of the proposed assessment. The Secretary 

shall place any escrow submitted by a mine operator for this purpose into an interest bearing account and shall release the funds to the operator, including interest 

accrued, upon the payment of any final assessment determination. If notification 

and proof of escrow is not provided to the Secretary, the citation and the proposed 

assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency. In the event that a mine operator refuses to 

comply with a final order of the Commission to pay civil monetary penalties and 

statutory interest, the Secretary shall have the authority to issue an order requiring 

the mine operator to cease production under such final orders of the Commission 

have been paid in full.’’

(g) MAXIMUM AND MINIMUM PENALTIES.—Section 110(a)(1) (30 U.S.C. 820(a)(1)) is 

amended by striking ‘‘more than $50,000 for each such violation.’’ and inserting ‘‘less 

than $500 or more than $100,000 for each such violation, except that, in the case 

of a violation of a mandatory health or safety standard that could significantly and 

substantially contribute to the cause and effect of a coal or other mine health or 

safety hazard, the penalty shall not be less than $1,000 or more than $150,000, for 

each such violation.’’. 

(h) FACTORS IN ASSESSING PENALTIES.—The Federal Mine Safety and Health Act 

of 1977 is amended—

(1) in section 105(b)(1)(B)—

(A) by striking: ‘‘the size of the business of the operator charged’’ and inserting ‘‘the combined size of the business of the operator and any controlling entity’’; 

(B) by striking ‘‘the effect on the operator’s ability to continue in business,’’; and 

(C) by adding at the end the following: ‘‘In settling cases, the Secretary 

shall utilize the same point system as that utilized to propose penalties, so 

as to ensure consistency in operator penalty assessments.’’; and 

(2) in section 110(j) (as redesignated by subsection (a)(4))—

(A) by striking: ‘‘the size of the business of the operator charged’’ and inserting ‘‘the combined size of the business of the operator and any controlling entity’’; 

(B) by striking ‘‘the effect on the operator’s ability to continue in business,’’; and 


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(C) by adding at the end the following: ‘‘In any review requested by a 

mine operator, or in settling cases, the Commission shall utilize the same 

point system as that developed by the Secretary for proposed assessments 

so as to ensure consistency in operator penalty assessments.’’. (i) CIVIL PENALTY FOR INTERFERENCE OR DISCRIMINATION.—Section 110 (30 U.S.C. 

820) is further amended by adding at the end the following: ‘‘(n) CIVIL PENALTY FOR INTERFERENCE OR DISCRIMINATION.—Any operator who is 

found to be in violation of section 105(c), or in violation of section 103(a) (as amended by this Act) shall be subject to a civil penalty of not less than $10,000 nor more 

than $100,000 for each occurrence of such violation.’’. (j) WITHDRAWAL ORDER.—Section 107(a) (30 U.S.C. 817(a)) is amended by inserting after the first sentence the following: ‘‘In addition, in the event of any violation 

of section 315 or section 316, or regulations issued pursuant to such sections, such 

representative shall determine the extent of the area of such mine throughout which 

the danger exists and issue an order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c), to be withdrawn from, and 

to be prohibited from entering, such area until an authorized representative of the 

Secretary determines that the violations have been abated.’’. (k) CLARIFICATIONS OF INTENT IN THE 1977 ACT.—The Federal Mine Safety and 

Health Act of 1977 is amended— (1) in section 3(d) (30 U.S.C. 802)—

(A) by inserting ‘‘mineral’’ before ‘‘owner’’; 

(B) by inserting ‘‘mineral’’ before ‘‘lessee’’; 

(C) by striking ‘‘or any independent’’ and inserting ‘‘and any independent’’; and 

(D) by inserting before the semicolon the following: ‘‘, and no operator 

may, by contract or other agreement, limit any liability under this Act 

through transfer of any responsibilities to another person’’; 

(2) in section 103 (30 U.S.C. 813)—

(A) in subsection (b)—

(i) by striking the first sentence and inserting the following: ‘‘For the 

purpose of enabling the Secretary to perform the functions under this 

Act, the Secretary may, after notice, hold public hearings and sign and 

issue subpoenas for the attendance and testimony of witnesses and the 

production of information, including but not limited to relevant data, 

papers, books, documents and items of physical evidence, and administer oaths, whether or not in connection with a public hearing.’’; and 

(ii) in the last sentence by striking ‘‘documents’’ and inserting ‘‘information, including data, papers, books, documents, and items of physical 

evidence’’; and 

(B) in subsection (h), in the first sentence, by striking ‘‘information’’ and 

inserting ‘‘data, papers, books, documents, and items of physical evidence’’; 

(3) in section 104 (30 U.S.C. 814)—

(A) in subsections (d)(1), (e)(1), (e)(2), (e)(3), and (e)(4), as amended by 

this Act, by inserting ‘‘or any provision of this Act’’ after ‘‘standard’’ or 

‘‘standards’’ each place either such term appears; and 

(B) in subsection (d)(1), as amended by this Act, by striking ‘‘while the 

conditions created by such violation do not cause imminent danger,’’; 

(4) in section 105 (30 U.S.C. 815)—

(A) in subsection (a), in the first sentence, by striking ‘‘, within a reasonable time after the termination of such inspection or investigation,’’; 

(B) in subsection (c)—

(i) in paragraph (1)—

(I) by inserting ‘‘or an injury or illness in a coal or other mine 

or that may be associated with mine employment,’’ after ‘‘of an alleged danger or safety or health violation in a coal or other mine,’’; 

and 

(II) by inserting at the end the following: ‘‘No miner shall be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyond the normal hazards inherent in the operation which could 

reasonably be expected to cause death of serious physical harm before such condition or practice can be abated.’’; and 

(ii) in paragraph (2), by inserting after the fifth sentence the following: ‘‘No investigation or hearing authorized by this paragraph may 

be stayed to await resolution of a related grievance proceeding’’; and 

(C) by adding at the end the following: 

‘‘(e) Attorneys representing the Secretary are authorized to contact any miner or 

non-managerial employee of a mine operator for the purposes of carrying out the 


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Secretary’s functions under this Act and no attorney representing the Secretary 

shall be disbarred or disciplined by any State bar or State court for making such 

contacts. No attorney representing a mine operator in a matter under this Act may 

concurrently represent individual miners in the same matter.’’; and 

(5) in section 110 (30 U.S.C. 820)—

(A) in subsection (b)(2), by striking ‘‘under’’ and inserting ‘‘of subsections 

(a) through (h) of’’; and 

(B) in subsection (c)—

(i) by striking ‘‘Whenever a corporate operator’’ and inserting ‘‘Whenever a mine operator’’; 

(ii) by striking ‘‘safety standard’’ and inserting ‘‘safety standard or requirement of this Act’’; 

(iii) by inserting ‘‘partner, owner,’’ after ‘‘director,’’; and 

(iv) by striking ‘‘such corporation’’ and inserting ‘‘such mine operator’’. 

(l) FEDERAL LICENSING.—The Secretary shall promptly establish an advisory committee to provide recommendations as to whether the Federal Mine Safety and 

Health Act of 1977 should provide for Federal licensing of mines, mine operators, 

mine controllers, or various mine personnel in order to ensure that those engaged 

in mining activities are not frequent violators of safety and health requirements, 

and establish a national registry in connection therewith. The advisory committee 

shall be established pursuant to the Advisory Committee Act, and shall conduct a 

review of existing State licensing requirements and registries, assess their effectiveness, and shall provide its recommendations to Congress not later than 2 years after 

the date of enactment of this Act. 

SEC. 6. SUPPLEMENTING RESCUE, RECOVERY, AND INCIDENT INVESTIGATION AUTHORITY. 

(a) EMERGENCY CALL CENTER.—Not later than 30 days after the date of enactment of this Act, the Secretary shall establish, within the Mine Safety and Health 

Administration, a central communications emergency call center for all coal or other 

mine operations that shall be staffed and operated 24 hours per day, 7 days per 

week, by 1 or more employees of the Mine Safety and Health Administration. All 

calls placed to the emergency call center shall be answered by an individual with 

adequate experience and training to handle emergency mine situations. A single national phone number shall be provided for this purpose and the Secretary shall ensure that all miners and mine operators are issued laminated cards with emergency 

call center information. 

(b) CONTACT INFORMATION.—The Secretary shall provide the emergency call center with a contact list, updated not less often than quarterly, that contains—

(1) the contact phone numbers, including the home phone numbers, for the 

members of each mine rescue team responsible for each coal or other mine; 

(2) the phone numbers for the local emergency and rescue services unit that 

is located nearest to each mine; 

(3) the contact phone numbers, including the home phone number, for the operator of each mine; 

(4) the contact phone numbers, including the home phone numbers, for the 

national and district officials of the Mine Safety and Health Administration; 

(5) the contact phone numbers, including the home phone numbers, for the 

State officials in each State who should be contacted in the event of a mine 

emergency in such State; and 

(6) the contact phone numbers, including the home phone number, for the authorized representative of the miners at each mine. 

Each mine operator shall ensure that the Secretary is provided with completely current information required to be maintained by the Secretary pursuant to paragraphs 

(1), (3), and (6). The Secretary shall give due consideration to the information collected by the joint government-industry Mine Emergency Operations database. 

(c) MINE LOCATIONS; REPOSITORY OF MINING MAPS.—

(1) MINE LOCATIONS.—The Secretary shall establish, maintain, and keep current, on the Department of Labor’s website, a detailed map or set of maps showing the exact geographic location of each operating or abandoned mine in the 

United States, as determined by a global positioning system. Such map or maps 

shall—

(A) be presented, through links within the website, in such a way as to 

make the location of a mine instantly available to the emergency personnel 

responding to the mine; 

(B) be available to members of the public; 

(C) allow a user to find the geographic location of a particular mine, or 

the geographic locations of all mines of a particular type in a county, congressional district, State, or other commonly used geographic region; and 


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(D) provide the geographic location of any mining waste impoundments 

with links to associated emergency contact information and available emergency response plans. 

(2) REPOSITORY OF MINING MAPS.—The Secretary shall establish a national repository for preserving a digital archive of mining maps to be accessible directly 

and without delay from the Department’s web site. The mining maps shall include copies of all historic maps that can be obtained, as well as copies of currently approved mining maps, which the Secretary shall arrange to copy and 

preserve in digital form. The Secretary may coordinate the operation of such repository with the Secretary of the Interior provided the other requirements of 

this paragraph are observed. In addition, the Secretary shall include in this repository copies of the most currently available mine emergency response plan, 

roof plans, ventilation plans, and such other plans required for any type of 

mine, following any required approval, so that they may be immediately 

accessed in an emergency, in a manner consistent with the requirements of section 312(b) of the Act. 

(d) REQUIRED NOTIFICATION OF EMERGENCIES AND SERIOUS INCIDENTS.—Section 

103(j) (30 U.S.C. 813(j)) is amended—

(1) in the first sentence, by inserting ‘‘or reportable event’’ after ‘‘accident’’; 

(2) in the second sentence—

(A) by inserting ‘‘of accidents’’ after ‘‘the notification’’; and 

(B) by inserting ‘‘, or in the case of a reportable event that is not required 

to be reported as an accident, within 1 hour of the time at which the operator realizes that the event has occurred’’ before the period; and 

(3) by inserting at the end the following: ‘‘For the purposes of this subsection, 

a reportable event shall include—

‘‘(1) a fire not required to be reported more promptly; 

‘‘(2) a sudden change in mine atmospheric conditions in a sealed area; 

‘‘(3) a coal or rock outburst that causes the withdrawal of miners; or 

‘‘(4) any other event, as determined in regulations promulgated by the Secretary, that needs to be reported within 1 hour in order for the Secretary to 

determine if the working conditions in the mine are safe.’’. 

(e) ENHANCING THE CAPABILITIES OF MINE RESCUE TEAMS.—

(1) AMENDMENT TO FMSHA.—Section 115(e)(2)(B) (30 U.S.C. 825(e)(2)(B)) is 

amended by adding at the end the following: 

‘‘(v) The provision of uniform credentials to mine rescue team members, support 

personnel, or vehicles for immediate access to any mine site. 

‘‘(vi) The plans required at each mine to ensure coordination with local emergency 

response personnel and to ensure that such personnel receive adequate training to 

offer necessary assistance to mine rescue teams in the event such assistance is requested. Such local emergency response personnel shall not perform the duties of 

any mine rescue team. 

‘‘(vii) Requirements to ensure that operators are prepared to facilitate the work 

of mine rescue teams during an emergency by—

‘‘(I) storing necessary equipment not brought on site by mine rescue teams in 

locations readily accessible to mine rescue teams; 

‘‘(II) providing mine rescue teams with a parking and staging area adequate 

for their needs; 

‘‘(III) identifying a space appropriate for coordinating emergency communications with the mine rescue team; and 

‘‘(IV) identifying and maintaining separate spaces for family members, community members, and press to assemble during an emergency so as to facilitate 

communications with these groups while ensuring the efforts of the mine rescue 

teams are not hindered.’’. 

(2) RESEARCH.—Section 22(h)(5)(A) of the Occupational Safety and Health Act 

of 1970 (29 U.S.C. 671(h)(5)(A)) is amended by adding before the period at the 

end thereof: ‘‘including advanced drilling technologies, and any special technologies required for safety or rescue in mining more than 1,500 feet in depth’’. 

(f) Title I of the Act is amended by adding at the end thereof a new section:’’. 

‘‘SEC. 117. EMERGENCY PREPAREDNESS PLAN. 

‘‘Not later than 6 months of the enactment of the S–MINER Act, the Secretary 

shall establish and disseminate guidelines for rescue operations that will: (1) establish clear lines of authority within the agency for such operations; (2) establish clear 

lines of demarcation so private sector and State responders can properly implement 

their responsibilities; (3) be appropriate for rescue in various types of conditions reasonably likely to be encountered in the United States, including such factors as the 

depth of the mining, ground stability, ground slope, remoteness from major roads, 

surface ownership and access problems, and the availability of necessary commuVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6621 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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nications linkages. The Secretary shall consult with States, rescue teams and other 

responders in developing such guidelines, and shall update them from time to time 

based upon experience.’’. 

(g) AUTHORITY OF SECRETARY DURING RESCUE OPERATIONS.—Section 103 (30 

U.S.C. 813) is further amended—

(1) in subsection (j), by adding at the end thereof: 

‘‘If the representative of the Secretary supervises and directs the rescue and recovery activities in such mine, the operator shall comply with the requests of the authorized representative of the Secretary to facilitate rescue and recovery activities 

including the provision of all equipment, personnel, and other resources required to 

perform such activities in accordance with the schedule and requirements established by the representative of the Secretary for this purpose, and failure of the operator to comply in this regard shall be considered an egregious violation of this 

Act.’’; and 

(2) in subsection (k), by striking ‘‘, when present,’’. 

(h) RESCUE COMMUNICATIONS.—

(1) REPEAL.—The MINER Act (30 U.S.C. 801 note) is amended by striking 

section 7, redesignating sections 8 and 9 as sections 7 and 8, and sections 11 

through 14 as sections 9 through 12, respectively. 

(2) AMENDMENT TO FMSHA.—Title I of the Act is further amended by adding 

at the end the following: 

‘‘SEC. 118. FAMILY LIAISONS REQUIREMENT. 

‘‘The Secretary shall—

‘‘(1) designate a full-time permanent employee of the Mine Safety and Health 

Administration to serve as a Family Liaison, who shall, at least in instances 

where multiple miners are trapped, severely injured or killed, act as the primary communication with the families of the miners concerning all aspects of 

the rescue operations, including the location or condition of miners, and assist 

the families in getting answers to their questions, and otherwise serve as a liaison to the families, and provide for the temporary reassignment of other personnel who may be required to assist the Family Liaison in connection with a 

particular incident; 

‘‘(2) require the Mine Safety and Health Administration to be as responsive 

as possible to requests from the families of such miners for information relating 

to the mine accident, and waive any fees required for the production of documents pursuant to 5 U.S.C. 552(a)(3) in connection with a request from a family 

member, or authorized representative of miners, for documents relating to a 

mine fatality, notwithstanding any conditions for fee waivers law that may otherwise be imposed by law; and 

‘‘(3) designate a highly qualified representative of the Secretary with experience in public communications to be present at mine accident sites where rescues are in progress during the entire duration of such rescues, to serve as the 

primary communicator with the press and the public concerning all aspects of 

the rescue operations, including the location or condition of miners.’’. 

(3) CONFORMING AMENDMENTS.—The Act is amended—

(A) in section 103(f), by inserting before the period at the end of the first 

sentence the following: ‘‘, and to participate in any accident investigation 

pursuant to the requirements of this Act. Any family member of a miner 

trapped or otherwise unable to execute a designation of a miner representative on his or her own behalf may do so on behalf of the miner for any and 

all purposes’’; and 

(B) in section 316(b)(2)(E)(vi) (as added by this Act), by adding at the end 

the following ‘‘The plan shall also set forth the operator’s plans for assisting 

the Secretary in the implementation of section 118.’’. 

(i) RECOVERY.—Section 103 is amended by adding at the end thereof—

‘‘(l) Rescue efforts for trapped miners shall not cease as long as there is any possibility that miners are alive, unless such efforts pose a serious danger to rescue or 

other workers, and the decision to cease a rescue shall be made by the Secretary‘s 

representative. Thereafter, efforts to recover the remains of miners shall continue 

unless such efforts pose a serious danger to recovery workers, and the decision to 

cease such recovery efforts shall be made by the Secretary’s representative.’’. 

(j) ACCIDENT AND INCIDENT INVESTIGATIONS.—Section 103(b) (30 U.S.C. 813(b), as 

amended by section 5(k)(2) of this Act, is further amended—

(1) by striking ‘‘For the purpose’’ and inserting the following: 

‘‘(3) For the purpose’’; 

(2) by inserting after the subsection designation the following: 

‘‘(1) For all accident and incident investigations under this Act, the Secretary 

shall determine why the accident or incident occurred; determine whether civil or 


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criminal requirements were violated and, if so, issue citations and penalties, and 

make recommendations to avoid any recurrence. The Secretary shall also determine 

whether the conduct or lack thereof by Agency personnel contributed to the accident 

or incident. ‘‘(2)(A) For any accidents or incidents involving multiple serious injuries or 

deaths, or multiple entrapments, there shall also be an independent investigation 

to consider why the accident or incident occurred, make recommendations to avoid 

a recurrence, and determine whether the conduct or lack thereof by agency personnel contributed to the accident or incident. ‘‘(B) Not later than 30 days after the date of enactment of the S–MINER Act, the 

Secretary shall initiate rulemaking activity to establish rules on the procedures that 

will be used to investigate accidents and incidents involving multiple serious injuries or deaths, or multiple entrapments, and shall directly contact and solicit the 

participation of ‘‘(i) individuals identified by the Secretary as family members of miners who 

perished in mining accidents of any type during the preceding 10-year period; ‘‘(ii) organizations representing miners; 

‘‘(iii) mine rescue teams; 

‘‘(iv) Federal, State, and local investigation and prosecutorial authorities; and 

‘‘(v) others whom the Secretary determines may have information relevant to 

this rulemaking. 

Such rulemaking shall be completed by October 1, 2008. 

‘‘(C) The rules for the investigation of accidents or incidents involving multiple serious injuries or deaths, or multiple entrapments, shall provide for the appointment 

and operations of any such independent investigation team in accordance with the 

requirements of this paragraph. An independent investigation team shall be appointed by the Director of the National Institute for Occupational Safety and Health 

as soon as possible after a qualifying accident or incident. The members shall consist of: 

‘‘(i) a representative from the National Institute for Occupational Safety and 

Health who shall serve as the Chairman; 

‘‘(ii) a representative of mine operators with familiarity with the type of mining involved; 

‘‘(iii) a representative of mine workers with familiarity with the type of mining involved, who shall be the workers’ certified bargaining representative at 

the mine or, if there is no certified representative at the mine, then a workers’

representative jointly selected by organized labor organizations: 

‘‘(iv) an academic with expertise in mining; and 

‘‘(v) a representative of the State in which the accident or incident occurred 

to be selected by the Governor. 

‘‘(D) Such rules shall include procedures to ensure that the Secretary will be able 

to cooperate fully with the independent investigation team and will use the powers 

of the Secretary under this section to help obtain information and witnesses required by the independent investigation team, procedures to ensure witnesses are 

not coerced and to avoid conflicts of interest in witness representation, procedures 

to ensure confidentiality if requested by any witness, and procedures to enable the 

independent investigation team to conduct such public hearings as it deems appropriate. Such rules shall also require that upon completion of any accident or incident investigation of accidents or incidents involving multiple serious injuries or 

deaths, or multiple entrapments, the independent investigation team shall—

‘‘(i) issue findings as to the actions or inactions which resulted in the accident 

or incident; 

‘‘(ii) make recommendations as to policy, regulatory, enforcement or other 

changes, including statutory changes, which in the judgment of the independent 

investigation team would best prevent a recurrence of such actions or inactions 

at other mines; and 

‘‘(iii) promptly make all such findings and recommendations public (except 

findings and recommendations that must be temporarily withheld in connection 

with a criminal referral), including appropriate public hearings to inform the 

mining community of their respective findings and recommendations. 

‘‘(E) As part of the Secretary’s annual report to Congress pursuant to section 

511(a), the Secretary shall report on implementation of recommendations issued by 

any independent investigation teams in the preceding 5 years.’’; and 

(3) by adding at the end the following: 

‘‘(4) Nothing in this Act shall be construed to limit the authority of the Chemical 

Safety and Hazard Investigation Board to conduct an independent investigation of 

the accident or incident or the events or factors resulting therein, nor with the authority of the Office of the Inspector General to conduct an investigation of the conduct of DOL personnel in connection with an accident or incident or the events or 


hmoore on PRODPC68 with HMRPT
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factors resulting therein, and the Secretary shall cooperate in full with any such investigation. Such investigation shall be in addition to any investigation authorized 

by section 103(b).’’. 

SEC. 7. RESPIRABLE DUST STANDARDS. 

(a) RESPIRABLE DUST; RESPIRABLE SILICA DUST.—Section 202 (30 U.S.C. 842) is 

amended to read as follows: 

‘‘SEC. 202. DUST STANDARD AND RESPIRATORY EQUIPMENT. 

‘‘(a)(1) Effective on the date of enactment of the S–MINER Act, each coal mine 

operator shall continuously maintain the concentration of respirable dust in the 

mine atmosphere during each shift to which each miner in the active workings of 

such mine is exposed at or below a time-weighted average of 1.00 milligrams of respirable dust per cubic meter of air averaged over 10 hours or its dose-equivalent 

for shorter or longer period of time. For purposes of this paragraph, ‘a dose-equivalent’ means the amount of dust that a miner would inhale during his work shift as 

if he were working for 10 hours, and the term ‘shift’ means portal-to-portal for underground coal mines and ‘bank to bank’ for other coal mines. ‘‘(2) At regular intervals to be prescribed by the Secretary and the Secretary of 

Health and Human Services, the Secretary will take accurate samples of the 

amount of respirable dust in the coal mine atmosphere to which each miner in the 

active workings of such mine is exposed in order to determine compliance with the 

requirements of paragraph (a)(1) of this section. In addition, the Secretary shall 

cause to be made such frequent spot inspections as he deems appropriate of the active workings of coal mines for the purpose of obtaining compliance with the provisions of this title. All samples by the Secretary shall be taken by a personal dust 

monitor that measures, records and displays in real time the concentration of respirable dust to which the miner wearing the device is exposed, and shall include 

the sampling of areas, occupations or persons. For the purposes of determining compliance with the exposure limit for respirable dust, only a single sample shall be 

required to determine non-compliance, and there shall be no adjustment for measurement error in the measured level of respirable dust. ‘‘(3) At intervals established by the Secretary, each operator of a coal mine shall 

take accurate samples of the amount of respirable dust in the mine atmosphere to 

which each miner in the active workings of such mine is exposed to identify sources 

of exposure so that the operator can take corrective action and assure that the exposure of each mine is below the exposure limit. Under the provisions of this Act, all 

such samples shall be taken by a personal dust monitor that measures, records and 

displays the concentration of respirable dust to which the miner wearing the device 

is exposed, and may include samples of less than a full shift. The results of such 

sampling shall be transmitted to the Secretary in a manner established by him, and 

recorded by him in a manner that will assure application of the provisions of this 

section of the Act. 

‘‘(4) Each miner shall be equipped with a personal dust monitor that measures, 

records and displays in real time the concentration of respirable dust to which the 

miner wearing the device is exposed. Each miner shall be permitted to adjust his 

work activities whenever necessary to keep his exposure to respirable coal dust, as 

measured, recorded and displayed by such device, at all times at or below the permitted concentration. 

‘‘(b) Effective on the date of enactment of the S–MINER Act, each operator of a 

coal or other mine shall continuously maintain the concentration of respirable silica 

dust in the mine atmosphere during each shift to which each miner in the active 

workings of such mine is exposed at or below a time-weighted average of 0.05 milligrams of respirable silica dust per cubic meter of air averaged over ten hours or 

its dose-equivalent for shorter or longer period of time. For the purposes of this 

paragraph, compliance shall be determined by the sampling of areas, occupations or 

persons, only a single sample shall be required to determine non-compliance, and 

there shall be no adjustment for measurement error in the measured level of respirable silica dust. For the purposes of this paragraph, a ‘dose-equivalent’ means the 

amount of dust that a miner would inhale during his work shift as if he were working for 10 hours, and the term ‘shift’ means portal-to-portal for underground mines 

and ‘bank to bank’ for other mines. 

‘‘(c) Respiratory equipment approved by the Secretary and the Secretary of Health 

and Human Services shall be made available to all persons whenever exposed to 

concentrations of respirable dust or silica in excess of the levels required to be maintained under this section. Use of respirators shall not be substituted for environmental control measures in the active workings. Each operator shall maintain a 

supply of respiratory equipment adequate to deal with occurrences of concentrations 

of respirable dust and silica in the mine atmosphere in excess of the levels required 

to be maintained under this section. 


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‘‘(d) Each operator shall report and certify to the Secretary at such intervals as 

the Secretary may require as to the conditions in the active workings of a coal mine, 

including, the average number of working hours worked during each shift, the quantity and velocity of air regularly reaching the working faces, the method of mining, 

the amount and pressure of the water, if any, reaching the working faces, and the 

number, location, and type of sprays, if any, used.’’. 

(b) CONFORMING AMENDMENT.—Section 205 (30 U.S.C. 845) is repealed. 

(c) ASSESSMENT ON PROGRAM OPERATIONS OF CUMULATIVE IMPACT OF EXTERNAL

REQUIREMENTS ADDED SINCE 1977.—The Secretary shall request the National Academy of Sciences to conduct a study of the impact on the mine safety and health responsibilities of the Department of Labor of various statutes, executive orders, and 

memoranda applicable to the issuance of rulemaking and guidance and to enforcement. The study shall include an assessment of the Equal Access to Justice Act, the 

Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness 

Act, the Data Quality Act, the Paperwork Reduction Act, the Unfunded Mandates 

Reform Act, the Federal Advisory Committee Act, the Congressional Review Act, Executive Order 12866, Executive Order 13422, and memoranda from the Office of 

Management and Budget on guidance, risk assessment and cost analysis. The Secretary shall request that the National Academy of Sciences consult widely with experts in administrative law and other disciplines knowledgeable about such requirements, and to quantify to the extent possible the costs to miners of the aforementioned requirements. The Secretary shall further request that recommendations be 

included in the report, and that such report and recommendations be completed, 

and forwarded to the Congress, no later than 21 months after the date of enactment 

of this Act. 

SEC. 8. OTHER HEALTH REQUIREMENT. 

(a) AIR CONTAMINANTS.—Section 101 of (30 U.S.C. 811) is amended by adding at 

the end the following: 

‘‘(f) Notwithstanding the other requirements of this section, not later than 30 days 

of the enactment of the S–MINER Act, the National Institute for Occupational Safety and Health shall forward to the Secretary its Recommended Exposure Limits 

(RELs) for chemical and other hazards to which miners may be exposed, along with 

the research data and other necessary information. Within 30 days of receipt of this 

information, the Secretary shall to adopt such recommended exposure limits as the 

Permissible Exposure Limits (PELs) for application in the mining industry. The National Institute of Occupational Safety and Health shall annually submit to the Secretary any additional or revised recommended exposure limits for all chemicals and 

other hazards to which miners may be exposed, and the Secretary shall be obligated 

to adopt such exposure limits as PELs for application in the mining industry within 

30 days of receipt of such information. Upon petition from miners or mine operators 

providing credible evidence that feasibility may be an issue for the industry as a 

whole, the Secretary may review the feasibility of any PEL established pursuant to 

this paragraph before placing it into effect and, following public notice and comment, make necessary adjustments thereto, provided that the adjusted standard is 

as protective as is feasible, and that the PEL shall go into effect as required by the 

other provisions of this paragraph if such action is not completed within one year. 

Moreover, upon petition from miners or mine operators providing credible evidence 

that a REL issued by the National Institute of Occupational Safety and Health lacks 

the specificity required to serve as a PEL pursuant to this Act, the Secretary may 

defer implementation of the requirements of this paragraph and shall promptly request National Institute of Occupational Safety and Health to recommend a sufficiently detailed REL, at which time the provisions of this paragraph shall be implemented. Nothing in this subsection shall limit the ability of the National Institute 

of Occupational Safety and Health to make such recommendations more frequently 

than 1 time per year, nor limit the Secretary from establishing requirements for 

chemical and other substances or health hazards in the mining industry that are 

more comprehensive and protective than those established pursuant to this subsection and in accordance with the other requirements of this section.’’. 

(b) ASBESTOS.—Section 101 (30 U.S.C. 811) is further amended by adding at the 

end the following: 

‘‘(g) The health standard for asbestos established by the Occupational Safety and 

Health Administration that is set forth in section 1910.1001 of title 29, Code of Federal Regulations, or any subsequent revision of that regulation, shall be adopted by 

the Secretary for application in the mining industry not later than 30 days of the 

enactment of the S–MINER Act. Nothing in this paragraph shall preclude the Secretary from adopting regulations to address asbestos hazards to miners not covered 

by the regulations of the Occupational Safety and Health Administration.’’. 


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1 U.S. Senate, The Federal Coal Mine Health and Safety Act of 1969, 91st Congress, 1st Session, Report No. 91–411 (September 17, 1969); U.S. House of Representatives, The Federal Coal 

Health and Safety Act, 91st Congress, 1st Session, Report No. 91–563 (October 13, 1969), p. 1. 

House Report can be found at http://www.msha.gov/SOLICITOR/COALACT/69hous.htm. 2 U.S. Department of Labor, History of Mine Safety and Health Legislation (October 5, 2007), 

http://www.msha.gov/MSHAINFO/MSHAINF2.HTM. 3Department of Labor, Coal Fatalities for 1900 through 2006 (October 5, 2007), http:// 

www.msha.gov/stats/centurystats/coalstats.asp. 4George Siehl, ‘‘The Federal Role in Mine Safety,’’ The Library of Congress Legislative Reference Service (February 3, 1969), p. 1. 5 Report No. 91–563 at pp. 1–2; Siehl, supra, p. 1. See also: Report No. 91–411, pp. 3–4. 6 Id. 7 Report No. 91–411, p. 4. 8Siehl, supra, p. 3. 

(c) HAZARD COMMUNICATION.—Section 101 (30 U.S.C. 811) is further amended by 

adding at the end the following: ‘‘(h) Unless and until there is additional rulemaking pursuant to the requirements 

of this section, the Secretary shall apply the provisions of the interim final rule of 

October 3, 2000, concerning hazard communication, in lieu of the final rule of June 

21, 2002, concerning hazard communication.’’. 

I. PURPOSE

The purpose of H.R. 2768 is to enhance occupational safety and 

health protection for this Nation’s miners. 

II. COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND

VOTES

Early Federal Action on Mine Safety and Health 

The Federal Government recognized the safety and health dangers in mining as early as 1865, when a bill to create a Federal 

Mining Bureau was introduced in the Congress.1 In 1891, Congress 

passed the first statute governing mine safety. This legislation was 

modest and applied only to mines in U.S. territories, establishing 

minimum ventilation requirements and prohibiting the employment of children under age 12.2

Between 1880 and 1910, there were well over 2,400 fatalities a 

year.3 As a result, on July 1, 1910, Congress passed Public Law 

179, creating the Bureau of Mines within the Department of the 

Interior.4 It was charged with: 

diligent investigation of the methods of mining, especially 

in relation to the safety of miners, and the appliances best 

adapted to prevent accidents, the possible improvement of 

conditions under which mining operations are carried on, 

the treatment of ores and other mineral substances, the 

use of explosives and electricity, the prevention of accidents, and other inquiries and technologic investigations 

pertinent to said industries.5

This legislation was very limited and specifically denied ‘‘any 

right or authority in connection with, the inspection or supervision 

of mines in any state’’ on the part of any Bureau employee.’’ 6 It 

was, however, a Federal recognition of the need to address hazards 

in the mineral industries.7

In 1941, the House and Senate passed the bill which became 

Public Law 49 and was called Title I of the Federal Coal Mine 

Safety Act.8 Title I specifically authorized Federal authorities to inspect coal mines for health and safety hazards. Over the next 25 

years, several other mine safety and health laws were enacted, exVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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9 Report No. 91–563, p. 2. 10 Chris Stirewalt, supra; Report, No. 91–563, p. 2. 11 U.S. Department of Labor, History of Mine Safety and Health Legislation, supra. 12 Id. 13 U.S. Senate, The Federal Mine Safety and Health Act of 1977, 95th Congress, 1st Session, 

Report No. 95–181 (May 16, 1977), p. 5, http://www.msha.gov/SOLICITOR/COALACT/ 

leghist2.htm. 

panding the authority of inspectors and providing for mandatory 

safety codes. 

Modern Mine Safety and Health Legislation 

91ST CONGRESS

In 1967, there were 222 mine fatalities, followed by 311 in 1968.9

The most infamous of these mine disasters was a mine explosion 

that occurred at an underground coal mine near Farmington, Marion County, West Virginia on November 20, 1968. Of the 99 miners 

in the mine at the time of the explosion, only 21 were able to escape. After several days of rescue efforts, the mine was sealed and 

78 miners were lost forever.10

After many days of hearings, mine tours, and consultations with 

experts, Public Law 91–173, the Federal Coal Mine Health and 

Safety Act of 1969, or the Coal Act, was enacted. The Coal Act was 

more comprehensive and more stringent than any previous Federal 

legislation.11 It covered both surface mining and underground mining and required, on a yearly basis, 2 inspections for surface mines 

and 4 inspections for underground mines. Safety standards were 

strengthened and interim health standards were adopted. In addition, it included specific instructions to the Agency on how to develop these improved standards. The law increased Federal enforcement powers and mandated monetary penalties for all violations and adopted criminal penalties for ‘‘knowing and willful’’ violations. Finally, the Coal Act provided compensation for those miners disabled by ‘‘black lung’’ disease.12

Over the next several Congresses, additional mine safety and 

health legislation was introduced, hearings were held, but nothing 

was enacted. In 1970, the Senate Committee on Human Resources 

held 3 hearings on health and mine safety, but no further legislative action was taken.13

95TH CONGRESS

In 1977, Congress and the President moved forward with additional mine safety legislation. On November 9, 1977, the President 

signed the Federal Mine Safety and Health Act of 1977 (Public Law 

95–164) into law on November 9, 1977. It placed coal mines and 

metal and nonmetal mines under a single law, with enforcement 

provisions similar to the 1969 Act, although it maintained separate 

safety and health standards. The new law moved enforcement from 

the Department of Interior to the Department of Labor and renamed the agency the Mine Safety and Health Administration 

(MSHA). 

The law also improved the assessment and collection of civil penalties and provided for 4 inspections a year at all underground 

mines and 2 at all surface mines. The advisory standards for metal 

and nonmetal mines and state enforcement plans were eliminated. 


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14 U.S. Department of Labor, Fact Sheet, supra; U.S. Department of Labor, History of Mine 

Safety and Health Legislation, supra. See also: J. Davitt McAteer, The Federal Mine Safety and 

Health Act of 1977: Preserving a Law that Works,98 W. VaL. Rev. 1105 (Summer, 1996). 15When the House considered the legislation on September 20, 1977, it inserted provisions 

of an amended S. 1538, which had been introduced by Senator Randolph on May 16, 1977. Several other bills were introduced regarding black lung, including H.J. Res 151 (Rahall), H.R. 2185 

(Duncan) H.R. 1532, H.R. 4388, H.R. 4389, H.R. 5152 (Simon), H.R. 4426 (Findlay) H.R. 4858 

(Slack), H.R. 5297 (Beard), H.R. 7598 (Murtha), H.R. 7979 (Sarasin), H.R. 8484 (Erlenborn), as 

well as S. 1041 (Sparkman), extending black lung benefits to miners from iron mines with silicosis. 16McAteer, supra, pp.1–2. In addition in the 104th Congress, Senator Robb introduced S. 1517 

to appropriate funds for the Black Lung Disability Trust Fund, and Rep. Kanjorski (D–PA) introduced H.R. 293, a bill regarding black lung. He also introduced similar legislation in the 

105th (H.R. 1600) and 106th Congresses (H.R. 722). 17Subcommittee on Departments of Labor, Health and Human Services, and Education, and 

Related Agencies. 18 Congressional Record, debated p. H6561–6562, voted p. HR6578. 

In addition, the law enhanced the protection of miners from retaliation for exercising their rights under the new law. It also provided for mandatory miner training and required mine rescue 

teams for all underground mines. Finally, the law increased the involvement of miners and their representatives in health and safety 

activities and established the Federal Mine Safety and Health Review Commission to provide for independent review of a majority 

of MSHA’s enforcement actions.14

In 1978, the Congress also passed and the President signed the 

Black Lung Benefits Reform Act, which amended the Mine Act of 

1969 to strengthen somewhat the provisions regarding black lung 

benefits for miners.15

Recent Legislative Action on Mine Safety and Health 

104TH CONGRESS

On June 14, 1995, Representative Cass Ballenger introduced 

H.R. 1834, the Safety and Health Improvement and Regulatory Reform Act of 1995. It would have repealed the Mine Act of 1977 and 

eliminated MSHA. Instead it would have regulated mining under 

a scaled-back version of the Occupational Safety and Health Act 

(OSHA). While the House Subcommittee on Workforce Protections 

of the Committee on Economic and Educational Opportunities, held 

hearings on the bill on June 20, 1995, June 28, 1995 and July 27, 

1995, no legislation was enacted.16

107TH CONGRESS

On October 21, 2002, the labor subcommittee 17 of the Senate 

Committee on Appropriations held a field hearing in Johnstown, 

Pennsylvania, to investigate the Quecreek mine disaster of July 24, 

2002. Nine miners were trapped 300 feet below in the surface when 

an estimated 77 million gallons of water had poured into the mine. 

All of the miners were rescued. The subcommittee examined the 

adequacy of funding for MSHA, mine inspection regulations, safety 

reviews and accident investigation procedures. 

108TH CONGRESS 18

On July 10, 2003, Rep. Nick Rahall proposed an amendment to 

bar the use of any funds appropriated to the Department of Labor 

to implement regulations proposed on March 6, 2003. The regulations in question, proposed by the Bush Administration, would 

have permitted an increase in the amount of coal dust to which 


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19 68 FR 39881. 20 In the 106th Congress, there were a few bills addressing mine operations, including S. 1114 

introduced by Senator Enzi to treat small mines as ‘‘small entities for data collection purposes. 

On November 11, 2000, the HELP Committee reported the bill out of Committee but no further 

action was taken on the legislation. 21 U.S. Senate, The Mine Improvement and New Emergency Response Act of 2006 or the ‘‘Miner Act’’, 109th Congress, 2d Session, Report No. 109–365, (December 6, 2006), p. 2. 22 Id.. 23 Id., p.3. 24 Id. 25 Id. 

miners could be exposed. The amendment failed by 2 votes, but the 

Administration halted work on the proposed regulation.19

109TH CONGRESS 20

In 2006, there were 3 serious mine disasters that killed 18 miners. At the Sago mines in West Virginia 12 miners died, followed 

by 2 fatalities at the Aracoma Alma mine, also in West Virginia 

and 4 deaths at the Darby mine in Harlan County, Kentucky, 

bringing the death toll in the first 5 months of 2006 nearly 50% 

higher than the previous year.21

These disasters, along with the rise in coal production in recent 

years, put mine safety front and center. On February 13, 2006, 

House Education and Workforce Committee Ranking Member 

George Miller, joined by Resources Committee Ranking Member 

Nick Rahall, conducted a congressional forum with families from 

the Sago, Aracoma Alma, and Jim Walters mine disasters. On February 15, 2006, the Senate Employment and Workforce Safety Subcommittee of the Health, Education, Labor and Pensions (HELP) 

Committee held a roundtable hearing on ‘‘Mine Safety Technology.’’

On March 2, 2006, the full HELP Committee held a hearing on the 

state of mine safety and health.22

As a result of the Committee’s inquires, the Mine Improvement 

and New Emergency Response Act, S. 2803, called the MINER Act, 

was introduced on May 16 by Senators Enzi, Kennedy, Isakson, 

Murray, Rockefeller, Byrd, DeWine and Santorum. This compromise bill was referred to the HELP Committee, which held an 

executive session on May 17, 2006. A manager’s amendment was 

accepted, along with an amendment offered by Senator Sessions to 

change the name of the Sago Mine Safety Grant program in Section 14 to ‘‘Brookwood-Sago.’’ The bill was unanimously voted out 

of the HELP Committee with approval and passed in the Senate 

by unanimous consent on May 24, 2006.23

The House companion bill, H.R. 5432, was introduced on May 19, 

2006 by Representative Capito (R–WV). This bill was referred to 

the Committee on Education and Labor and then to the Subcommittees on Workforce Protections and on 21st Century Competitiveness. 

On June 7, 2006, S. 2083 was passed by the House of Representatives under suspension on a vote of 381–37. The President signed 

the bill, which became Public Law No. 109–236, on June 15, 

2006.24

Some technical changes were made to the Act and were included 

in Section 1301 of H.R. 4, the Pension Protection Act. H.R. 4 was 

signed into law by the President on August 20, 2006. These 

changes affected only the numbering of the penalties sections.25


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26 Edward Rappaport, Coal Mine Safety, CRS (June 23, 2006), p. 6. 27 Report, 109–365; p. 11, Rappaport, supra. Also in the 109th, other bills were introduced on 

mine safety including, H.R. 4695 (Rahall), S.2231 (Byrd), S.2308 (Specter), S. 2448 (Durbin), and 

H.R. 5481 (Norwood). Finally, on June 8, 2006, Representative Norwood introduced H.R. 5554, 

which would have prohibited the Secretary of Labor from promulgating regulations based on 

guidelines, etc. of any organization, unless the Secretary determined that the organization was 

a nationally recognized standard setting organization. No action was taken on any of these bills. 28Democratic Staff Report, Background on the Activities of the House Education and Labor 

Committee with Respect to Mine Safety and Health, House Committee on Education and Labor 

(September 9, 2007), Http://edlabor.house.gov/publications/20070907MineSafety.pdf. In addition to the oversight hearings, the staff report notes that a number of letters were sent from 

the Committee to the Secretary of Labor expressing concern about implementation of the 

MINER Act or other requirements of law. 

Legislation that was broader and comprehensive in scope than 

the MINER Act was also introduced in 2006 in both the House and 

Senate. H.R. 5389, introduced by Representatives Miller and Rahall on May 16, 2006 and S. 2798 introduced by Senator Kennedy 

on May 12, 2006 would have provided for additional safety measures, including the continuous monitoring of the mine atmosphere, 

refuges stocked with 5 days of supplies, as well as a lower limit on 

dust concentrations. In addition the legislation provided more 

stringent requirements for rescue teams, required family involvement in accident investigations, provided for stricter penalties and 

created a safety ombudsman within the Department of Labor Office 

of Inspector General.26

The MINER Act has many provisions to improve miner health 

and safety. It requires underground coal mine operators to develop 

an emergency plan for each mine they run. In addition, each mine 

must have at least 2 rescue teams located no less than an hour 

away. The Act increases civil and criminal penalties for violations 

of Federal safety standards and gives MSHA the authority to close 

a mine on a temporary basis that fails to pay penalties assessed 

against it. The Act also requires MSHA to issue a new standard 

regarding the sealing of abandoned mines. In addition, the law 

mandates studies into ways to enhance safety and establishes a 

new office in the National Institute for Occupational Health and 

Safety (NIOSH) to improve mine safety. Finally, the law establishes new scholarships and grant programs for training about 

mine safety.27

110TH CONGRESS

In 2007, the Education and Labor Committee established as one 

of its priorities, oversight of the activities of MSHA, including its 

implementation of the 2006 MINER Act.28

Three oversight hearings were held during the year. On March 

28, 2007, the Committee held a hearing entitled ‘‘Protecting the 

Health and Safety of America’s Mine Workers.’’ On May 16, 2007, 

the Committee held a hearing entitled ‘‘Evaluating the Effectiveness of MSHA’s Mine Safety and Health Programs. And on October 

3, 2007, the Committee held an additional oversight hearing on 

‘‘The Perspective of the Families at Crandall Canyon.’’

On June 19, 2007, one year after the passage of the MINER Act, 

Representatives Miller, Rahall and Woolsey introduced H.R. 2768, 

the S–MINER Act and H.R. 2769, the Miner Health and Enhancement Act of 2007 to address the problems documented by the ComVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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29 Also, on January 19, 2007, Representative Rahall introduced H.R. 576 to prohibit belt haulage entries from being used to ventilate mines. 30The one difference between the two House bills and the unified Senate bill involved the date 

for implementation of new restrictions on the use of belt air. 

mittee’s oversight activities.29 On July 26, 2007, the Subcommittee 

on Workforce Protections conducted a legislative hearing on these 

two bills. 

In the Senate, parallel legislation was introduced by Senators 

Kennedy, Byrd and Murray. The Senate bill covered in one bill the 

provisions in the two House bills, and disagreed with the House 

bills in only one particular.30 Also, during 2007, oversight hearings 

on mine safety and health were held on May 22, 2007 by the Subcommittee on Employment and Workplace Safety of the Senate 

Health, Education, Labor and Pensions Committee on May 22, and 

by the full committee on October 2. Hearings were also held on 

February 28 and September 5 by the Subcommittee on Labor, 

Health and Human Services, Education and Related Agencies of 

the Senate Committee on Appropriations. 

The Education and Labor Committee marked up the legislation 

on October 31, 2007. Chairman Miller offered an amendment in the 

nature of a substitute for H.R. 2768. The substitute combined the 

provisions of H.R. 2768 and H.R. 2769, and made further changes 

to those provisions. 

Following discussion of the need to discuss one matter with the 

Energy and Commerce Committee, Chairman Miller moved to 

strike a provision of the substitute extending to concrete plants 

(which are mines under the law) the protections of section 311 and 

312 of the Emergency Planning Community Right-to-Know Act. 

This was agreed to by unanimous consent. 

Three amendments to the revised substitute were offered. 

Mr. Kline offered an amendment to add a new section to the bill 

concerning safety and health committees. Mr. Wilson offered a substitute amendment in the nature of a substitute, striking all after 

the enacting clause and substituting requirements for several studies, providing for coordination between MSHA and the Bureau of 

Land Management, and for the dissemination of accident information. Mr. McKeon offered an amendment to strike provisions of the 

bill concerning post-accident communication systems, refuges, 

seals, conveyor belts, belt air, and several others. Rollcall votes 

were taken on each amendment and each was defeated. 

The substitute was then approved by a rollcall vote of 26–18, and 

the bill ordered reported as amended. 

III. SUMMARY OF THE BILL

This bill would supplement the MINER Act of 2006. The MINER 

Act established some new requirements for underground coal mines 

in order to protect underground coal miners in the event of an 

emergency, and to address certain hazards which became clear 

after the tragedies early that year. On certain other matters, 

MINER Act provided for further research and development. 

The Supplemental MINER Act, or ‘‘S–MINER Act’’ for short, 

builds upon the framework established in the MINER Act. Following are: • an overview of the problems identified by the Committee, 

and the solutions provided in the S–MINER Act; 


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• a short summary of which provisions of the S–MINER Act 

are applicable to various sectors of the mining industry; and 

• a timeline of implementation dates in the S–MINER Act. 

1. OVERVIEW OF PROBLEMS AND SOLUTIONS PROVIDED IN THE S–

MINER ACT

Group A: Problems highlighted by Crandall Canyon 

Problem 1: Retreat mining is dangerous and poorly regulated. As 

underground coal mine operators run out of resources they can 

readily extract from their properties, they have used every available method to extract more. Where it can be used, longwall mining equipment permits coal extraction without the need to leave 

pillars of coal in place to hold up the roof, and the equipment is 

designed to protect miners from harm. Retreat mining is another 

way to get extra coal. It involves the extraction of the coal pillars 

originally left in place to hold up the roof, and it must be performed under a plan specifically designed for the situation so miners will not be hurt as the roof collapses. Sometimes retreat mining 

also involves reduction of giant ‘‘barriers’’ of coal left in place to 

hold up roofs under high mountains. Crandall Canyon threw light 

on the risky nature of retreat mining, and the poor oversight of retreat mining plans by MSHA. 

Solution: 

• The bill requires MSHA to more closely review retreat mining 

plans bringing computer simulations and experts to bear, and also 

requires MSHA to include an extra layer of review before approving plans for deep mines. 

• The bill requires MSHA to observe retreat mining operations 

when they begin for a long enough period of time to ensure they 

are being performed in accordance with the approved plans, and to 

ensure that miners are properly trained. 

• The bill requires a thorough study of ground control science 

and technology. 

Problem 2: MSHA’s authority to control rescue efforts is unclear. 

The agency generally makes joint decisions with mine operators because it believes operators will not provide the required drilling 

equipment, supplies and personnel to assist rescue efforts if it 

takes over control. While this joint decision-making has proved effective in certain cases, what happened at Crandall Canyon suggests the agency could use the added leverage. 

Solution: 

• The bill clarifies the statute to ensure that when the Secretary 

directs a rescue, the operator shall cooperate and comply with requests for resources. 

Problem 3: MSHA’s family and press liaison activities need 

strengthening. The MINER Act required MSHA to be in charge of 

communicating with families and the press during a rescue in 

order to ensure that incorrect and misleading information does not 

get disseminated. The first test of this new authority was at 

Crandall Canyon and it failed miserably. 

Solution: 

The bill more clearly defines MSHA’s responsibilities and requires full-time positions be created to carry them out. It also reVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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quires each mine operator’s emergency response plan to set forth 

how it will cooperate with MSHA in such situations. 

Problem 4: MSHA does not have its own emergency response plan. 

At our Crandall Canyon hearing, Governor Huntsman was highly 

critical of the lack of advance planning for coordination with state 

and local authorities. 

Solution: 

The bill requires MSHA to issue such a plan within 6 months. 

Problem 5: The law does not provide a mechanism for independent investigations of multiple-fatality mine accidents. Both the 

House and the Senate have been forced to initiate our own investigations of the Crandall Canyon accident for this reason. MSHA 

accident investigation teams are focused on determining civil or 

criminal liability of the mine operator and other personnel. They 

are composed of staff from around the country, often take a year 

or more to complete, are generally not open to the families or labor 

representatives or the public, and employ different procedures each 

time on how witness interviews are conducted. The Department is 

so protective of its authority that it has thrown up numerous roadblocks to efforts by outside panels to conduct simultaneous investigations (West Virginia state and special panels after Sago, Utah’s 

commission, and our investigations). A separate investigation of the 

conduct of MSHA’s own staff is also conducted to ascertain if policy 

changes are required. These are usually performed by MSHA staff 

from a general staffing office, although in the case of Crandall Canyon the Secretary has asked senior retired personnel to take charge 

These investigations often take a year or more to complete, and do 

not involve public hearings nor established procedures for obtaining input on agency conduct. 

Solution: 

The bill establishes ground rules for independent accident investigations of multiple-fatality mine accidents. The Director of 

NIOSH would appoint the panels which would include labor, management and academic experts. MSHA would be required to cooperate with the independent investigators. 

Group B: The unresolved problems highlighted by Dago, Darby and 

Aracoma Alma 

Problem 6: Enhanced communication and tracking systems are 

still not in place. Those who put together the MINER Act pinned 

their hopes on a new generation of truly wireless technology. They 

envisioned miners with cell phones being able to talk directly to the 

surface without reliance upon a cable or wire underground that 

could be disrupted by fire, explosion or roof collapse. To provide 

time for this technology to be developed, the MINER Act does not 

require such technology to be installed until June 2009, and provides for further delays if it isn’t ready. It now appears that a purely wireless two-way technology may remain elusive. NIOSH has 

since developed a ‘‘road-map’’ for the gradual enhancement of existing technology that can provide most of the advantages of a pure 

wireless system. 

Solution: 

• The bill requires operators to begin installation of such a ‘‘fill 

the gap’’ system within a few months of enactment, and to supplement it as NIOSH develops enhancements. 


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31 In early November of 2006, the director of the state Office of Miners’ Health, Safety and 

Training said that shelters were starting to be received by West Virginia mines and expected 

more than 50 such units to be delivered by the end of 2008. Tim Huber, Associated Press, Nov.6, 

2007. 

Problem 7: Underground refuges are not required. Although committee members saw a perfectly workable portable chamber to protect trapped miners, and West Virginia has already mandated their 

use,31 the MINER Act did not require their use nationwide. It simply required NIOSH to study their capabilities and report by the 

end of this year. The MINER Act, under a liberal interpretation by 

the Department, did require mine operators to provide 96 hours of 

‘‘breathable air’’ for trapped miners through the storage of air cylinders or through bore holes to the surface, but did not provide for 

a secure environment that would keep the good air in and keep the 

toxic gases away. 

Solution: 

• The bill requires underground coal mines to start installing 

such chambers, or similar refuges dug out of the mine workings 

and sealed by NIOSH approved doors, by June 2008. At least one 

chamber has to be within 500 feet of the working face. 

Problem 8: Explosion-proof seals are not yet guaranteed. After 

seals composed of an artificial material known as ‘‘Omega block’’ could not contain methane fueled explosions in abandoned areas of 

the Sago and Darby mines, MSHA used emergency authority to 

ban the use of Omega block, and increase from 20psi to 50psi the 

pressure requirements for any new seal installed underground. 

NIOSH launched research into the problem and discovered that 

seals really need to be constructed to meet pressures of 240psi, or 

the pressures behind seals regularly monitored so that miners can 

be evacuated.if the pressures reach explosive levels. The MINER 

Act required MSHA to take rulemaking action, and the agency has 

established interim rules that meet the NIOSH recommendations. 

Existing seals would have to be rebuilt or monitored just like new 

seals. The rules remain under review, however, and in danger of 

being weakened. 

Solution: 

• The bill imposes minimum requirements by statute so that the 

current rule cannot be weakened, and extends these rules to underground metal and nonmetal mines which face similar risks. 

Problem 9: Stoppings are not explosion proof. To get air to miners 

working at the ‘‘face’’, giant fans blow air through a set of passageways designed for that purpose. The walls of these passageways, 

known as ‘‘stoppings,’’ used to be constructed of solid concrete block 

cemented together, but in recent years walls have been constructed 

of hollow block, without cement, or using certain substitutes. 

Solution: 

• The bill requires stoppings be constructed in the traditional 

fashion, although hollow block would be permitted in areas scheduled for retreat mining. 

Problem 10: Mines continue to rely on dangerous conveyor belt 

technology. There are miles of conveyor belts in underground mines 

to carry materials to the surface, and some run 24/7. The friction 

of the mechanisms can create sparks and the belts themselves can 

then catch on fire, generating smoke and toxic fumes in addition 

to spreading a fire widely. The existing rules on flame resistance 


hmoore on PRODPC68 with HMRPT
26 

32Sandia is a government-owned/contractor operated facility. Sandia Corporation, a Lockheed 

Martin company, manages Sandia for the U.S. Department of Energy’s National Nuclear Security Administration. See http://www.sandia.gov/. 

are about 50 years old. Efforts to update them by rulemaking were 

stopped by the Bush Administration. The MINER Act established 

a task force to examine the problem and it recently reported that 

a new generation of less risky belts should be installed. The 

MINER Act did not, however, require MSHA to adopt these recommendations. 

Solution: 

• The bill requires all new conveyor belts installed in underground mines after enactment to be the new technology belts, and 

limits to 5 years the length of time mine operators can continue to 

use their supply of old technology belts. These requirements would 

apply to both underground coal and underground metal and 

nonmetal mines. 

Problem 11: ‘‘Belt air’’ is used too frequently and with inadequate 

safeguards. This is the practice in underground coal mines of using 

the passageway that brings air to the miners at the face for the 

conveyor belt system to take coal out of the mine. It saves the substantial cost of digging an additional ‘‘entryway’’ to house the conveyor belt system. The 1977 Act prohibited the practice because of 

concern that a fire on the belt would carry toxic fumes right toward 

where the miners are working. Over time, the agency used authority to ‘‘modify’’ safety requirements to permit it to be used in certain cases. Under the Bush Administration, the ‘‘paperwork’’ was 

eliminated and operators were given to use it provided certain conditions are met. The MINER Act established a Technical Review 

Panel to study the matter and it recently released a consensus recommendation—belt air can be used if approved on a case by case 

basis and the mine operator provides certain standards to protect 

safety. The MINER Act did not, however, require MSHA to adopt 

these recommendations. 

Solution: 

• The bill permits belt air only if: (1) it is necessary for safety 

reasons; (2) it is approved only through the modification process (a 

case by case review, in which the authorized miner representative 

may participate) and includes all the protections recommended by 

the Technical Review Panel. 

Problem 12: The law currently provides questionable protection 

against two serious explosion hazards—lightning storms and coal 

dust. The MSHA report on the Sago accident, backed by research 

from Sandia National Laboratories,32 believes the explosion was ignited by lightning traveling straight through the earth without any 

metal conductor and into an abandoned piece of wire cable. While 

MSHA has ordered all such metal items to be removed from newly 

sealed areas, technology to deal with this newly revealed power of 

lightning has not been developed. Coal dust poses a major explosive 

hazard, which is controlled in part by diluting it with stone or 

‘‘rock’’ dust. New types of mining equipment (e.g., longwalls) are 

believed to be creating finer coal dust particles than older technologies, and it is not known if current rock dusting rules are sufficient to dilute this finer coal particulate. 

Solution: 

• The bill requires studies of both risks (lightning and coal dust). 


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Problem 13: The reliability of miners’ Self-Contained Self-Rescuers (SCSRs) remains a concern. SCSRs provide breathing air for 

escape through toxic fumes. Mine operators were required to make 

many more available under the MINER Act. These devices fail if 

not properly maintained, and there is a history of bad manufacturing runs. 

Solution: 

• The bill provides that NIOSH and MSHA will work together 

to identify and obtain random samples of SCSRs in mines and test 

those samples. Additionally, SCSR manufacturers and mine operators will be required to notify the Secretary whenever a problem 

with an SCSR is identified. 

Group C: Problems identified through oversight 

Problem 14: Too many mine operators ignore the law. Some large 

mining companies operate mines through corporate shells that give 

them the advantage of penalty breaks designed for really small 

companies, and MSHA is one of the few agencies that lack subpoena authority to get at the truth. Other mine operators refuse to 

pay penalties that are overdue because MSHA lacks effective tools 

to collect. Many mine operators just treat penalties as a cost of 

doing business, because the penalties for common violations are not 

substantial or immediate enough to compel compliance. MSHA 

lacks the authority to shut down mines that fail to timely abate 

violations. And the agency has never once used its authority to impose heavy fines for a continuing ‘‘pattern of violations’’ by a mine 

operator. 

Solution: 

• The bill provides MSHA subpoena authority. It requires mine 

operators who want to contest citations to put their penalties in escrow to ensure they can be collected, and permits MSHA to stop 

production in mines that do not pay off delinquent accounts. It increases penalties that were not adjusted by the MINER Act, allows 

MSHA to shut down mines that do not timely abate violations, and 

modifies the ‘‘pattern of violations’’ authority to make it easier to 

use. 

Problem 15: Miner rights have been undermined. Safety and 

health hazards reported to MSHA by phone have often been ignored in recent years, in part because the function of taking the 

incoming complaints over the phone has been contracted out to individuals not familiar with mining terminology or miners. Whistleblowers are often blacklisted in the industry, and miners and families don’t trust MSHA to protect their identities. Those who complain about blacklisting may have to go through the grievance process before their cases can be adjudicated. The families at Crandall 

Canyon were unable to designate miner representatives, because 

the law only permits miners to do this—even when they are 

trapped below ground. 

Solution: 

• The bill requires the President to appoint, and the Senate to 

confirm, a Miner Ombudsman, to be located in the Inspector General’s office in DOL, to process incoming complaints and assist 

whistleblowers with their cases. The existing whistleblower protections under the law would be enhanced in a few respects, and the 

families of trapped miners could designate miner representatives. 


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Problem 16: Black lung is back. Generations of coal miners suffered and died from pneumoconiosis, or ‘‘black lung,’’ a severe and 

latent lung disease triggered by exposure to coal dust. The scope 

and severity of the problem was a key reason why the Congress enacted the Coal Act of 1969, including compensation provisions that 

have cost the Federal government and the mining industry significant amounts. The protections adopted in 1969—an exposure limit 

and requirements for MSHA compliance checks—were supposed to 

ensure that the next generation of miners would not develop the 

disease, Unfortunately in the last few months, NIOSH has confirmed that more miners are coming down with the disease, and 

some of them still relatively young. Worries about current protections are of long standing—some miner operators were convicted of 

tampering with the measuring instruments used to determine compliance, NIOSH recommended an exposure limit half of that in the 

statute, and the UMWA pointed out that miners were now working 

longer shifts than in 1969 and hence needed a lower limit just to 

stay even with the exposure limit set in 1969. Meanwhile, under 

the direction of NIOSH, new technology to more accurately and securely measure coal dust exposure has been developed, but it cannot be utilized for compliance purposes unless the law is changed. 

Solution: 

• The bill updates the law to permit the new measuring device 

(known as a personal dust monitor, or ‘‘pdm’’) to be used to determine compliance, and cut the exposure limit in half. 

Problem 17: Other health protections have been allowed to slowly 

erode. Most of the rules protecting miner safety and health consist 

simply of a ‘‘permissible exposure limit’’ or PEL, that cap the 

amount of a substance to which a miner may be exposed during a 

shift. Most of these limits were established decades ago, many 

picked up in the early days of the agency from limits established 

by trade groups. Over the years, NIOSH has recommended that 

many of the PELs be reduced to reflect its findings that the current 

limits do not provide adequate protection against serious diseases, 

including various cancers. In the late 1980s MSHA undertook an 

effort to update these limits en masse, but court decisions and industry opposition brought the effort to a halt. The agency lacks the 

capability to update each of the PELs through a separate rulemaking. 

Solution: 

• The bill requires MSHA to upgrade the PELs to reflect NIOSH 

recommendations. However, the original bill has been amended to 

provide that should labor or industry have legitimate concerns 

about the technological or economic feasibility of implementing a 

new PEL, MSHA would have to conduct rulemaking on those concerns before setting the revised exposure limit. Moreover while 

MSHA must act quickly to update the PELs, it would retain authority to set appropriate effective dates to further accommodate 

feasibility concerns. The bill would also set a specific new statutory 

limit on silica exposure. 

Problem 18: This Administration has delayed action or rolled 

back specific health protections. At industry’s behest, the Bush Administration tried to weaken and delay for years the implementation of a new rule to protect metal and nonmetal miners from the 

risks of exposure to diesel particulate matter, and our strong interVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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vention and a favorable court ruling were needed to halt that rollback. But there are others we need to address in the legislation. 

(1) The Administration has refused to move forward with a rule to 

put asbestos exposure standards in this industry on a par with 

other industries, and (2) it has weakened what was previously uniform set of rules to let workers know of the hazards in the products 

they are using on the job (hazard communication rule). 

Solution: 

• The bill corrects these two problems by codifying these necessary health protections in statute. 

2. MINING SECTORS COVERED BY VARIOUS PROVISIONS OF HR2768, AS

REPORTED

This summary table is a quick guide to the coverage of the bill. 

It should be used in close conjunction with the section-by-section 

discussion of the bill. 

Underground Coal Mines only • post-accident communications • underground refuges • ventilation controls (stoppings) • studies of rock dusting and lightning risks • belt air • pre-shift review of mine conditions • atmospheric monitoring systems (carbon monoxide) • methane monitors (multi-gas detectors) • roof screening, barrier reduction and pillar extraction (retreat mining) 

• SCSR inspection program • MSHA approval center priorities • coal dust standard and measurement rules 

Underground Non-Coal (metal and nonmetal) mines only • study of other emergency requirements that may be suitable 

for this sector 

Underground Mines, both Coal and Non-Coal (metal and 

nonmetal) • conveyor belt composition • seals—all underground coal mines and designated ‘‘gassy’’ non-coal mines 

All sectors (coal and non-coal, surface and underground)—all of 

the other provisions in the bill, including— • new authority for MSHA to retain retiring inspectors • miner ombudsman created 

• new authority for MSHA concerning inspections and rescues 

• enhanced sanctions in certain cases 

• establishment of emergency call center • independent accident investigations • revision of asbestos and hazard communication standards • limit on silica exposure • process to facilitate revision of personal exposure limits 

3. GENERAL TIMETABLE OF IMPLEMENTATION DATES, HR2768 AS

REPORTED

This table is general in character, and is subject to misinterpretation if not used in close conjunction with the detailed information about implementation dates in the section-by-section analysis 


hmoore on PRODPC68 with HMRPT
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of the bill. For example, the reported bill does not generally specify 

when various rules that must be issued are to become effective; information in that regard is not included in the table, but is discussed in the section-by-section. The bill has no general effective 

date, so unless otherwise specified the provisions go into effect 

upon enactment. 

S–MINER ACT OF 2007—TIMEFRAME SUMMARY 

Requirements To be implemented 

Provide for new Post Accident Communications system ......... Emergency response plans must be amended to require 

such systems within 120 days of enactment. 

Refuge Chambers ...................................................................... Interim final rules issued by June 15, 2008; installation 

within 60 days of next plan approval. 

Seals .......................................................................................... Final rules to be issued within 3 months of enactment. 

Stoppings .................................................................................. Interim final rule within 1 year of enactment. 

NIOSH Recommendations on Rock Dusting Standards ............ By June 15, 2009. 

Flame-resistant Conveyor Belts ................................................ Interim final regulations to be issued by January 31, 2008. 

Belt Air ...................................................................................... Regulations to be revised by June 20, 2008. 

Pre-shift communication plan .................................................. Required within 90 days of enactment. 

Atmospheric Monitoring Systems (CO) ..................................... Installation required by May 1, 2008. 

NAS lighting study .................................................................... Report within 1 year of enactment. 

NAS ground control study ......................................................... Report within 1 year of enactment. 

Advisory committee on metal/nonmetal emergency response 

issues.

Report within 21 months of enactment. 

Master inspector program ......................................................... Within 270 days of enactment. 

Pattern of violations ................................................................. Regulations to revised within 3 months of enactment. 

Advisory committee on licensing/registry ................................. Report within 2 years of enactment. 

Call Center ................................................................................ Established within 30 days of enactment. 

MSHA Emergency Preparedness Plan ....................................... Within 6 months of enactment. 

Independent Accident Investigations ........................................ Rulemaking to commence within 30 days of enactment and 

be completed by October 1, 2008. 

Personal Exposure Limits .......................................................... NIOSH to forward existing recommended limits within 30 

days of enactment, and DOL to adopt with 30 days thereafter except as provided. 

IV. STATEMENT AND COMMITTEE VIEWS

The Nation’s mine safety and health laws are in dire need of updating. In recent years we have witnessed several major accidents, 

a mine death toll that has not declined, and the renewed appearance of mine-related illnesses that we thought were a thing of the 

past. The total number of deaths from black lung disease has increased sharply. The agency in charge of mine safety and health 

has been underfunded and understaffed. Its work as a regulator 

has been stymied. In some cases, health and safety standards are 

decades out of date. In other cases, protections have been whittled 

away through years of exceptions, or have failed to keep up with 

modern mining techniques or operations. 

The Congress has begun to respond. The 109th Congress enacted 

limited legislation in 2006 known as the MINER Act. This law has 

made some improvements, but more needs to be done. And the ongoing death toll—and recent tragic events at Crandall Canyon—underscore the need to move swiftly. 

The Committee believes the case for additional legislation is 

overwhelming. The reported bill is not a complete reform of the 

Federal Mine Safety and Health Act, but neither is it directed too 

narrowly. The full Committee held 3 oversight hearings on the 

agency and the law this year, and our colleagues in the Senate 

have held hearings of their own. These hearings revealed a number 


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33 Edward Rappaport, Coal Mine Safety, CRS, (June 23, 2006), p. 2. NOTE: The 1977 legislation moved the responsibility for administering the law from the Department of Interior to the 

Department of Labor to avoid obvious conflicts of interests between the Agency and industry. 34Testimony of Representative Rahall before the House Education and Labor Committee, U.S. 

House of Representatives (May 16, 2007). See also: Testimony of Dan Berconi before the House 

Education and Labor Committee, U.S. House of Representatives (May 16, 2007); Testimony of 

Larry Grayson before the Education and Labor Committee, U.S. House of Representatives (May 

16, 2007); Testimony of Davit McAteer before the Education and Labor Committee, U.S. House 

of Representatives (May 16, 2006); and Testimony of Cecil Roberts, supra. 35 In 1925, over 2,500 miners were killed as compared to 22 in 2005 and 47 in 2006. Of course 

employment in this industry has also declined from 749,000 in 1925 to 110,000 currently. Id. 

at p. 2. 36 Id. at p. 3. See also: Testimony of Cecil Roberts before the House Education and Labor Committee, U.S. House of Representatives (March 28, 2007). 

of problems that require legislative attention. In addition to dealing 

with lessons learned from recent tragedies, the Committee believes 

it is appropriate to address the hazards likely to cause death and 

disability tomorrow, not just those that led to death and disability 

yesterday. 

In working on this problem, the Committee has sought out the 

views of all stakeholders. In crafting legislation, the Committee 

sought bipartisan discussions and engaged in dialogue with the 

mining industry, miners’ representatives, mining experts, and 

MSHA. Notwithstanding differences on substance, the Committee 

very much appreciates the technical comments received from all 

quarters of the mining community, and the reported bill benefits 

significantly from this input. 

(1) Background. In 1969, Congress enacted landmark legislation 

to protect the health and safety of coal miners. Legislation passed 

in 1977 added significant new protections, placed coal and non-coal 

miners under a single regulatory framework, and established the 

Mine Safety and Health Administration (MSHA) in the Department of Labor to administer and implement the law.33 Unfortunately, it appears that the intent of the Congress in setting up 

these laws decades ago—that ‘‘the first priority and concern of all 

in the coal or other mining industry must be the health and safety 

of its most precious resource—the miner’’—has never been fulfilled.34

Although there has been a decrease in miner deaths over the 

past century,35 mining is still one of the most dangerous occupations in the United States. Mining fatalities occur at a rate more 

than seven times the average for all private industries, exceeding 

other dangerous occupations such as construction and trucking.36

According to the latest information provided by MSHA, 56 miners 

have died from January 1, 2007 through the end of October 2007. 

While news reports this year and last have focused on multiple-fatality accidents involving coal miners, 26 of the 56 deaths so far 

this year have been in coal mines and 30 have been in non-coal 

(metal and nonmetal mines), most of which have been at surface 

mines. 

It was the Sago disaster in early 2006 that refocused the nation’s 

attention on the need for mine safety and health reform. On January 2, 2006, an explosion ripped through the Sago mine in Upshur 

Country, West Virginia, trapping 13 miners underground. Fifty-two 

hours later, 12 of the 13 miners were brought out dead. Just over 

two weeks later, a fire at the Aracoma Alma Mine No. 1 killed two 

miners, and on May 20, 2006, an explosion rocked the Kentucky 

Darby Mine No. 1, killing five miners. In all, 47 coal miners would 


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37February 27, 2007, http://edworkforce.house.gov/publications/MinerActStatus022707.pdf. 38Data current through September 20, 2007, according to information provided to the Committee in response to our request to Department of Labor of August 23, 2007. http:// 

www.house.gov/apps/list/speech/edlaborl—dem/RelAug24.html. 

die on the job in 2006—a ten-year high and more than twice as 

many as in 2005. 

In the absence of an official Congressional committee hearing on 

the Sago tragedy, the Democratic Members of the House Education 

and the Workforce Committee held a Forum on Mine Safety on 

February 13, 2006. The witnesses, including family members of 

miners killed on the job, shared accounts and perspectives on how 

to improve mine safety conditions in order to prevent further mining tragedies. 

Also in early in 2006, the Democrats on the House Committee on 

Education and Labor issued a report documenting a very troubling 

track record by the Bush Administration and the Department of 

Labor in protecting the health and safety of tens of thousands of 

hard-working American miners. Among other things, according to 

the report, the Administration sought budget and staffing cuts at 

MSHA, embarked on policies favoring compliance assistance over 

enforcement, and withdrew more than a dozen proposed safety and 

health rules. 

Following the forum, and the disasters at the Aracoma and 

Darby mines, then Committee Senior Democratic Member George 

Miller and others introduced the ‘‘Protecting America’s Miners Act’’ (H.R. 5389) in May 2006, to revise safety, inspection, rescue, and 

emergency standards contained within the Federal Mine Safety 

and Health Act of 1977. Following the Darby incident, a more limited mine safety bill, the MINER Act, was overwhelmingly passed 

by the Congress and was signed into law on June 15, 2006. 

At the time, Congressman Miller and others pointed out that the 

MINER Act was only a first step, and that much unfinished business remained. 

In 2007 in the new 110th Congress, the Education and Labor 

Committee initiated the first detailed oversight of MSHA activities 

in many years. Its first step was to take a careful look at the actions of the Administration in implementing the MINER Act. 

On February 27, 2007, more than eight months after the signing 

of the MINER Act, the House Education and Labor Committee released a staff report 37 which documented that MSHA was moving 

far too slowly in implementing the new law. The Government Accountability Office, at the request of the Committee, is also conducting an analysis of MSHA’s implementation of the MINER Act. 

In September 2007, the Committee requested and received detailed spreadsheets maintained by MSHA that show the status of 

implementation of MINER Act requirements at each mine, including any delays in the actual implementation date at each mine that 

were approved by MSHA. This information reveals that some of the 

MINER Act’s requirements remain unimplemented 16 months after 

the legislation was passed.38

In addition, a number of letters were sent to the Department requesting information on specific oversight concerns and seeking 

specific action where appropriate. For example, on March 16, 2007, 

Chairman Miller wrote to Secretary Chao requesting that the Department issue an emergency temporary standard to immediately 


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39See, e.g., dialogue between Mr. Stickler and Chairman Miller, hearing of May 16, 2007. 

require the use of underground refuge chambers in underground 

coal mines throughout the nation (the Secretary declined). 

The full Committee also held three oversight hearings on mine 

safety and health in 2007. 

On March 28, 2007, the Committee on Education and Labor conducted an oversight hearing on the need for further reform of the 

current law on mine safety regulation. This hearing, ‘‘Protecting 

the Health & Safety of America’s Mine Workers,’’ revealed that, despite enactment of the MINER Act, many of the hazards that led 

to disaster at Sago, Aracoma Alma, and Darby remain just as real 

today as they were 18 months ago. 

On May 16, 2007, the Committee on Education and Labor conducted a second oversight hearing to determine the effectiveness 

and progress of MSHA and its safety programs and initiatives since 

the enactment of the MINER Act of 2006. At this hearing, the Assistant Secretary for Mine Safety made very clear to the Committee 

that the Administration did not intend to go further than it was 

required to do under the MINER Act. Nor did it intend to move 

more swiftly than the deadlines established in that Act, notwithstanding new evidence that quicker action is feasible and necessary 

to ensure the safety of miners.39

And on October 3, 2007, the Committee held an oversight hearing on the Crandall Canyon mine tragedy that took place in Utah 

in August 2007, entitled ‘‘The Perspective of the Families at 

Crandall Canyon.’’ Most of the families who lost loved ones, including the families of rescue personnel, participated in the hearing to 

offer insights into what had happened. In addition, the Governor 

of Utah, Jon Huntsman, Jr. (R), joined the families to urge the 

Committee to act. 

The Committee also initiated its own investigation into the 

Crandall Canyon mine tragedy. As part of this investigation, the 

Committee will, among other things, specifically consider whether 

the mine operator and MSHA complied with the requirements of 

the MINER Act, as well as other requirements of existing law. The 

Committee is committed to a full and through investigation. 

(2) A review of recent serious mine accidents. Recent tragedies 

have highlighted weaknesses in the program established some 

years ago by the Congress to protect miners from on-the-job deaths, 

injuries and diseases. 

In 2006, three serious mine accidents occurred in quick succession—at Sago and Aracoma Alma in West Virginia and at Darby 

in Kentucky. Nineteen workers were killed as a result of these incidents, making a total of 47 deaths in 2006. In the Spring of 2007, 

MSHA finally completed its investigation on what happened in 

each mine. It also completed investigations on whether its own performance prior to each accident contributed to a climate which may 

have contributed to the accident. West Virginia also prepared reports of its own. 

• Sago Mine, West Virginia. On January 2, 2006, an explosion 

took place in an abandoned area at the Sago mine, allegedly because of a lightning storm in the area that ignited methane. The 

explosion completely destroyed seals that should have contained 

the damage in the abandoned area, releasing clouds of dust and 


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40September 24, 2007; copy currently available at http://edlabor.house.gov/correspondence/ 

20070924DOLSubpoena.pdf. 41The traditional method of mining underground coal is the ‘‘room and pillar system’’. This 

is done today by machines known as ‘‘continuous miners’’. These machines advance into a solid 

block of coal and grind out portions of the block. After advancing a few feet, they pull back and 

allow ‘‘roof bolting’’ machines to secure the exposed ‘‘roof’’ of the passage being cut so that it 

will not fall upon the miners as they advance. The miners also leave large pillars of coal in place 

to support the rock above the mine. Hence the mined area gradually comes to resemble a large 

checkerboard of white squares (coal removed) and black squares (pillars of coal left in place). 

In deeper mines, even larger areas of coal may be left undisturbed to keep the ground above 

from collapsing into the mine—from the top, or by pressure so high that the coal ‘‘bursts’’ from 

the pillars or floor. Such supports are known as ‘‘barriers.’’

poisonous gasses into the mine. Some miners escaped but fourteen 

others were trapped. One died before he could even put on a selfrescue device. The rest, unable to communicate with the surface 

and with a limited supply of air to escape, retreated to an area to 

await rescue, barricading themselves behind curtains and boards, 

as they had been trained to do to keep out poisonous gasses. Management was slow in contacting MSHA and rescue teams, and 

when they arrived rescuers lacked the critical information they 

needed to start their efforts—the conditions below ground, and the 

location where the miners were trapped. Confusion in the command center contributed to delays. Once the rescue began, it had 

to proceed slowly to permit the restoration of ventilation controls 

that had been destroyed by the explosion. By the time the rescuers 

got to the trapped miners, all but one had expired. 

• Aracoma Alma Mine, West Virginia. On January 19, 2006, a 

fire started on a conveyor belt at the Aracoma Alma mine. It was 

triggered when excessive coal dust in the air was ignited by sparks 

due to the misalignment of a belt. Initial attempts to extinguish 

the fire were delayed because an untrained employee in the mine 

office thought the alarm was malfunctioning. In addition, efforts to 

put out the fire and evacuate miners were hampered because 

waterlines to the area were out of service and the mine was not 

well-ventilated. Rescue efforts were further delayed by the lack of 

accurate maps. Two miners died. Criminal charges are still being 

contemplated in this case. Also, MSHA subsequently determined 

that the local office assigned responsibility for this mine had particularly serious management problems. 

• Darby #1 Mine, Kentucky. On May 19, 2006, there was an explosion at the Darby Mine. One of the seals to an abandoned area 

of the mine was known to be improperly constructed, and a miner 

instructed to make repairs with a torch ignited methane gas leaking out of the sealed area. Five workers died. 

In 2007, tragedy struck again. This time lives were lost at the 

Crandall Canyon Mine near Price, Utah. Investigations are still 

underway by MSHA and by this Committee, which has had to already issue one subpoena to get necessary information.40 While the 

investigation is not complete, following are some highlights that 

have been discussed by the press or in the Congressional hearings 

since the accident. 

• The coal seam is actually under a mountain, and the location 

of the accident was covered by about 1,800 feet of mountaintop. 

• By the time the current owners bought the mine in 2006, most 

of the available coal had already been removed. The coal that remained was contained within the barriers and pillars holding up 

the mountaintop.41 At some point, an outside firm was hired to 


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When the mining has advanced as far as it can go, the operator may begin to remove the 

pillars one at a time, moving from the far end back toward the entrance, allowing the roof of 

the mine to collapse in a controlled manner. This is known as pillar extraction or ‘‘retreat’’ mining. The mine operator may also cut back on the barrier walls, mining them out into room and 

pillars and then collapsing the pillars in retreat mining. 

A more recent approach is known as ‘‘longwall’’ mining, which combines the advance and retreat phases into a single operation. Rather than leaving pillars in place as the mining advances, the longwall system cuts out everything in a very wide block of coal. It contains a large 

roof shield that moves along with the cutting head, protecting the miners during the operation 

from the collapse of the new ceiling, and the roof collapses in a controlled manner after the entire system moves forward. Room and pillar passageways on the side of the longwalled areas 

are kept in place for ventilation, equipment movement and escape. Both roof and pillar and 

longwall mining were used in the Crandall Canyon mine. 

Each stage of the mining process requires a plan to be submitted to MSHA and approved. 

These plans are often called ‘‘roof control’’ plans, but in fact look broadly at ground control 

issues to ensure the plan protects miners from unanticipated collapses or bursts. 

conduct an engineering study to determine if more coal could safely 

be removed—in particular from two long barriers running more or 

less down the center of the mine on each side of the main passages 

used for ventilation, equipment, and escape. The study concluded 

that this could be done under specified conditions. Plans were then 

prepared for this work, and approved by MSHA. • The operation ultimately proceeded in four stages. Stage 1 involved mining out the barrier of coal on the north side by continuous miner to leave rooms and pillars in place of the solid barrier. 

Stage 2 involved the extraction of the pillars created during stage 

1, starting from the far end of the advance. This work began in 

early 2007. However it was stopped before the plan was completed 

following series of ‘‘bumps’’ in the area. Mining then began to remove coal from the south barrier. Stage 3 used a continuous miner 

to leave rooms and pillars in place of the solid barrier, and Stage 

4 involved the extraction of pillars. It was during this last stage, 

on Monday, August 6, 2007, that a significant section of area being 

mined apparently ‘‘burst’’ as the walls imploded from the weight of 

the mountaintop, trapping six workers. • Rescue teams were dispatched to assess the damage to the 

mine and begin clearing rubble to reach the cavity, about 3.5 miles 

from the mine entrance. As with the miners trapped during the incidents in 2006, there was no way to determine the exact location 

of the miners following the accident, to ascertain whether they 

were in an area that could support life, or had enough water or 

food to survive. Under the MINER Act of 2006, the mine was not 

required to have an advanced communication or tracking system in 

place, nor shelters in known locations that could sustain life for at 

least several days. The mine was required under the MINER Act 

to have 96 hours of breathable air for trapped miners in containers 

near the work site; but pursuant to the emergency response plan 

for the mine approved by MSHA, this supply was not required to 

be installed in the Crandall Canyon mine until the week after the 

collapse. Accordingly, while clearing of the passageways continued, 

crews also began a series of efforts to drill a borehole to the miners 

to provide communication, air, food and water until they could be 

rescued. These efforts were beset by initial delays due to lack of advance planning. • The rubble clearing efforts were also beset by delays because 

the mountain continued to ‘‘bump’’. After several weeks, the mine 

walls burst again, killing three rescue workers and injuring six others. All remaining rescue workers were pulled from the mine. The 

bodies of the six trapped miners have not been recovered. 


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42 Rescue workers who finally found the trapped miners had to shout to each other to relay 

information to the surface, and the command center on the surface understood that the men 

were found alive. This information was leaked to the families. It turned out there was only one 

survivor. 43 In a related matter, a camera crew of reporters was also permitted underground during the 

rescue with MSHA permission, an unprecedented action. The Committee leadership expressed 

public concern about these aspects of the rescue at the time they occurred. http:// 

www.house.gov/apps/list/speech/edlaborldem/rel081707crandall.html. 44 Comments of Jon Huntsman, Jr., Governor of Utah, hearing of the full committee October 

3, 2007, ‘‘The Perspective of the Families at Crandall Canyon’’ (transcript not yet available). 45 Comments of Richard E. Stickler, Assistant Secretary of Labor. Mine Safety and Health Administration, Subcommittee on Labor, Health and Human services, Education, and Related 

Agencies, Committee on Appropriations, United States Senate, September 5, 2007 (transcript 

not yet available). 46The $435,000 in fines that MSHA assessed after the accident were reduced by an administrative law judge to $3,000. ‘‘Judge Vacates Citations, Reduces Fines for Jim Walters Resources’’

Fatal Explosion,’’ Daily Labor Report, Nov. 9, 2005, pp. A4, A5. 

• As a result of a miscommunication during the Sago rescue in 

early 2006,42 the MINER Act required that MSHA be responsible 

for handling all communications with the public and the families 

during rescue efforts. At Crandall Canyon, the owner nevertheless 

played a prominent role in press and family briefings.43 Moreover 

in testimony before this Committee, the Governor of the State of 

Utah expressed serious concern about the confusion at the site resulting from the lack of an emergency response plan; 44 and at Senate hearings, MSHA expressed concern that it doubted its own authority to tell operators to cooperate had MSHA actually taken over 

the rescue.45

During the course of its oversight hearings, the Committee also 

heard information about past tragedies that continue to resonate in 

this country’s mining communities. Foremost among these are: • Jim Walters No. 5 mine—2001, Alabama—A roof fall onto a 

battery charger set off a methane explosion. One miner was unable 

to walk to safety. Twelve more miners came back to help evacuate 

that miner when a second explosion killed them all. This incident 

created a great deal of caution in the mining community about 

sending in rescue teams, a fact that may well have influenced what 

happened at Sago. JWR #5 is a deep mine using belt air, and the 

explosions revealed deficiencies that were not addressed and revealed again in the Sago tragedy. The United Mine Workers and 

family members of the miners who perished were deeply distressed 

by what they regard as inadequate MSHA investigations of the accident, and the role they were permitted to play therein. Civil penalties assessed in connection with the accident were eventually reduced dramatically due to procedural problems.46

• Willow Creek Mine—2000, Price, Utah—This underground coal 

mine was was located very close to the Crandall Canyon mine, and 

the mining community in the area has yet to recover from the earlier accident. On July 31, 2000, a series of four explosions ripped 

through this mine. According to MSHA’s accident report, the most 

likely cause was a roof fall in the worked-out area behind a 

longwall mining system. The roof fall ignited methane and other 

gaseous hydrocarbons. This resulted in the first explosion and fire. 

Believing that a roof fall had occurred, personnel remained on the 

longwall section to extinguish a fire near the base of the shields 

that protect the miners during this operation. Eventually, however, 

liquid hydrocarbons—unique to this particular mine—became involved in the fire and there were three more explosions. Two fatalities occurred as a result of the second and third explosions. 


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47This summary of the Wilberg mine fire is based on one prepared by the United States Mine 

Rescue Association, http://www.usmra.com/saxsewell/wilberg.htm. 

Although the mine was sealed and not reopened for the investigation, MSHA later determined that the ventilation system was 

faulty. It was supposed to dilute and render harmless concentrations of methane and other gaseous hydrocarbons in the workedout area where potential ignition sources existed, but did not do so. 

It appears that liquid hydrocarbons are still not directly addressed 

in MSHA regulations. This has been brought to the attention of the 

State of Utah which is considering whether to adopt a regulatory 

program of its own. 

• Wilberg Mine—1984, Utah.—The Wilberg mine fire, which 

claimed the lives of twenty-seven miners on December 19, 1984, 

was the most deadly coal-mine fire in Utah history and the worst 

U.S. mine disaster in a dozen years. Investigation of the fire revealed serious failures by the agencies charged with assuring coal 

mine safety.47

Fire broke out in a main passageway which ran several miles 

into the mountain. Within minutes, smoke and lethal gases traveled 2,400 feet a side passageway to the working face of the mine. 

One miner escaped, but eighteen miners and nine company officials 

were trapped and killed. Among the victims was Nannett Wheeler, 

the first woman to die in a Utah mine since women officially entered mining in 1973. 

Rescuers, believing that the trapped miners might still be alive, 

worked frantically to reach them. Following three days of heroic effort, rescue crews entered Fifth Right and located 25 bodies. Before 

the bodies could be removed, however, the fire rekindled, forcing 

rescuers to evacuate and seal the mine. Recovery of the bodies was 

finally completed in December 1985, nearly a full year after the 

disaster. The sealed area where the fire began was not opened 

until July 1986. Only then could the Federal Mine Safety and 

Health Administration (MSHA) begin its investigation into the 

cause of the fire. 

In the Spring of 1987, MSHA ruled that the Wilberg fire was 

caused by a faulty air compressor, allowed to run unattended in a 

non-fireproofed area. MSHA issued thirty-four citations against 

Utah Power and Light and Emery Mining Company (the mine’s operator). Nine of the citations were for violations that directly contributed to the disaster. However, MSHA itself received strong criticism from the United Mine Workers of America, in part for failing 

to issue these same citations when it inspected the mine only days 

before the fire. The union also questioned MSHA’s focus on the 

cause of the fire rather than the cause of the deaths, insisting that 

miners died, not because there was a fire, but because they had no 

escape route. 

Following a Senate Labor and Human Resources Committee 

hearing into the Wilberg disaster, Utah Senator Orrin G. Hatch requested an investigation by the General Accounting Office (GAO)—

the investigative arm of Congress—into MSHA’s conduct regarding 

the Wilberg Mine. The GAO review, released in November 1987, 

cited MSHA for allowing the Wilberg Mine to operate with an outdated firefighting and evacuation plan, to operate with no fire suppression devices, and to run a compressor known to be faulty. The 


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48Ken Ward, Charleston Gazette, Sept.14, 2007. 49Graph and explanatory statement provided to the Committee by James L. Weeks, ScD, CIH, 

November 6, 2007, based on data supplied by NIOSH. See also MD Attfield and EL Petsonk, 

CDC MMWR Weekly, July 6, 2007, 56(26); 652–655. 50 Each film is graded by an international convention (developed by the International Labor 

Organization) for scoring chest x-ray films. According to this convention, films are scored by the 

size, shape, and profusion of opacities in the film. Films can be graded as normal (profusion 

0), simple (small opacities with profusion 1, 2, or 3), or complicated (large opacities with profusion A, B, or C) indicating increasing levels of profusion and of severity. Due to the uncertainty 

inherent in this scheme, a typical profusion score is given as X/Y with X representing the most 

likely score but it could also be Y which is the next higher or lower score. In these data, the 

prevalence of CWP is, more precisely, the prevalence of films graded 1/0 or higher. These represent early stages of CWP. The significance of this score is that miners with any score 1/0 or 

GAO report also criticized MSHA for permitting the section where 

the miners were working to operate while a tunnel running off the 

area was blocked to human travel by a cave-in. 

(3) A review of recent serious health threats. Miners are exposed 

to a variety of substances that significantly increase their risk of 

substantial impairment or death. Some of these substances are natural, and miners are exposed to their hazards in the process of removing them from the ground or processing them in related facilities (e.g., mills or preparation plants). Many other toxic substances 

are brought into mines to help in mining operations. In addition, 

mines contain poisonous gases, such as methane, carbon monoxide, 

and many others that are either produced by the mine itself or by 

the heavy equipment operating in closed environments or in close 

quarters with the miners. 

Following is some background information on examples of specific health threats to miners that have come to the attention of the 

Committee. 

(a) Coal dust standard and compliance measurement: the return 

of Black Lung disease. 

Coal Workers’ Pneumoconiosis (CWP) is a chronic disease that 

develops slowly and is caused by inhaling respirable coal mine 

dust. It is an irreversible condition that can be disabling. There is 

no cure; it must be prevented. Respirable dust includes coal, 

quartz, and other dusts that occur in mines. On a gram for gram 

basis, quartz dust is more pathogenic than other dusts and is especially important for miners who cut into rock in the roof or bottom 

of a mine—such as roof bolters, some continuous miner operators, 

or construction workers. The occurrence of CWP depends on the 

level and the duration of exposure to respirable dust. CWP has a 

higher prevalence with increasing level of exposure and with longer 

duration of work as a miner. 

According to data recently released by the National Institute for 

Occupational Safety and Health (NIOSH), black lung disease rates 

among U.S. Coal Miners have doubled in the last decade. Ten years 

ago, about 4 percent of coal miners with 25 years or more years 

working underground showed evidence of the disease, and rates 

had consistently declined since 1970. The most recent data, however, found a 9 percent rate of disease in this group. Moreover, the 

rates increased for miners with even fewer years of exposure.48

The graph reproduced here is a display of the NIOSH data.49 It 

shows the prevalence of CWP by calendar year and by years 

worked as a miner. ‘‘Calendar Year’’ in this graph is the first year 

of a five year interval during which chest x-ray films were made. 

CWP is identified with the use of a chest x-ray in a surveillance 

program conducted by NIOSH.50 On this graph, prevalence is 


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higher are at much higher risk of becoming permanently disabled than are miners with normal 

scores. 

measured on the vertical axis and years on the horizontal axis. 

Each line represents the prevalence by year for miners with different years of experience, as indicated in the legend. It shows that 

from 1970 to about 1995, the overall trend in the prevalence of 

CWP has decreased. It shows that miners with more years work as 

a miner are more likely to develop CWP than those with fewer 

years. This is expected and adds to the reliability of these data. 

Over the past ten years, however, the prevalence of CWP has increased two-fold for miners with longer employment histories. 

One thing that can be done to reduce the problem is to reduce 

the level of coal dust to which miners can be exposed. NIOSH recommended that MSHA do just that in 1995: 

In November 1995, the National Institute for Occupational Safety and Health (NIOSH) issued a comprehensive 

review of the literature concerning occupational exposure 

to respirable coal mine dust in its Criteria Document 

(NIOSH Criteria Document, 1995). NIOSH concluded, 

among other things, that coal miners in our country continue to be at increased risk for developing respiratory disease as a result of their exposure to respirable coal mine 

dust. Although it is beyond the scope of this rulemaking, 

in its 1995 Criteria Document, NIOSH recommended a 

time weighted average exposure limit to respirable coal 

mine dust of 1.0 mg/m 3, up to ten hours per day for a 40–

hour work week. 65 FR 42069 

A dozen years later, however, the NIOSH recommendation has 

not been adopted. Instead, the exposure level remains at the minimum level set by the Congress in legislation established almost 40 

years ago. 

A second approach to lowering coal dust levels is to revise the 

manner in which compliance with the standard is determined, so 


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51This discussion draws heavily on a summary of the problem by Gardiner Harris, Courier 

Journal, April 20, 1998, originally run as a series called Dust, Deception and Death. 52 65 FR 42068, July 7, 2000. 

as to ensure that miners are not being overexposed even to the existing standard. This includes ensuring that miners working longer 

than normal shifts have their exposure limit adjusted to reflect 

that fact, and changing the sampling method and protocols to 

eliminate fraud resulting in overexposures. 

The exposure level is based on a weekly ‘‘dose’’ of coal dust that 

a miner inhales. However, the current exposure limit assumes that 

miners work a traditional 40 hour week work schedule. In fact, 

miners now generally work non-traditional work schedules that 

often last longer than 40 hours. Unfortunately, however, the exposure limit has not changed. This means that miners are actually 

being exposed to more coal dust than intended by the Congress 

when the standard was set in the 1969 Coal Act. 

The existing system of measuring coal dust, which relies heavily 

upon operator sampling in addition to whatever sampling MSHA 

inspectors can take during their visits, has suffered from considerable fraud. In 1975, for example the government’s General Accounting Office reported that 18 percent of the air samples submitted by 

operators from the dirtiest areas of mines had 0.1 mg. of dust per 

cubic meter of air. These readings were found even in mines where, 

just days later, federal inspectors were finding the legal limit of 2.0 

mg. To test whether these very low readings could possibly be accurate, the auditors took their own dust tests inside and outside of 

coal mines. Only those taken entirely outdoors had 0.1 mg. of dust. 

Even tests taken in mine offices had more than 0.2 mg. of dust. 

Cheating went on everywhere they looked, the auditors wrote. A 

series of tests in 1978, 1984 and 1988 produced similar results. 

While this clearly meant that miners were being exposed to dust 

levels far in excess of what the law permitted, MSHA did little to 

address the problem.51

In mid-1989, an MSHA lab technician noted a white spot on a 

filter which was used to collect dust samples. Hundreds more were 

found. Determining that the spots were due to blowing air into the 

sampling cassettes to rid them of dust collected, the Department of 

Labor in 1991 charged about half the underground coal mines in 

the country with tampering. The charges were dismissed, but subsequent prosecutions for tampering were successful. 

In 1995, an advisory committee was created to address the situation. The committee recommended that MSHA take over compliance dust sampling. It took MSHA a few more years to figure out 

how to deal with this in practice. 

In 2000, MSHA proposed several changes to the current sampling system.52 As explained by the agency: 

The Secretary of Labor and the Secretary of Health and 

Human Services believe that miners’ health can be further 

protected from the debilitating effects of occupational respiratory disease by limiting their exposures to respirable 

coal mine dust exceeding the applicable standards. 

MSHA’s improved program to eliminate overexposures on 

each and every shift includes multiple rulemakings. 

Through this proposal, MSHA would be able to use single, 


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53This is the case in the violation of any other exposure level; coal dust was treated uniquely 

in this regard based on a 1972 interpretation, which MSHA was unable to change without rulemaking. As explained in the rulemaking: ‘‘The Secretaries are proposing to rescind a previous 

1972 finding, by the Secretary of the Interior and the Secretary of Health, Education, and Welfare, on the validity of such single shift sampling. Today’s proposal addresses the final decision 

and order in NMA v. Secretary of Labor, issued by the United States Court of Appeals for the 

11th Circuit on September 4, 1998 (153 F. 3d 1264). That case vacated a 1997 Joint Finding 

and MSHA’s proposed policy concerning the use of single, full-shift respirable dust measurements to determine noncompliance when the applicable respirable dust standard was exceeded. 

65 FR 42068. 54 68 FR 10874, March 6, 2003. 55 68 FR 39881. 56 Volkwein-JC, Vinson-RP, McWilliams-LJ, Tuchman-DP, Mischler-SE, U.S. Department of 

Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, 

National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication No. 2004–

151, Report of Investigations 9663, 2004 Jun :1–25. 

fullshift respirable coal mine dust samples to more effectively identify overexposures and address them. Other 

overexposures to respirable coal mine dust would be prevented through finalizing a proposed rule that would require each underground coal mine operator to have a 

verified mine ventilation plan. MSHA would verify the effectiveness of the mine ventilation plan for each mechanized mining unit (MMU) to controlling respirable dust 

under typical mining conditions. Furthermore, that proposal would revoke underground operator compliance and 

abatement sampling. Consequently in underground coal 

mines, MSHA intends to increase the number of compliance inspections per year, and MSHA would conduct 

abatement sampling for non-compliance determinations. 

The notice of proposed rulemaking to promulgate new regulations to require operators to have a verified ventilation 

plan in underground coal mines is published elsewhere in 

today’s Federal Register.’’ 65 FR 42069 

Thus, the agency embarked on a plan to revise the existing sampling system to take over the responsibility for compliance sampling, to ensure that one compliance sample would be adequate to 

issue a citation,53 and to tighten control of operator dust control 

plans. The agency did not, however, proposed to change the exposure limit to that recommended by NIOSH. The proposal was never 

finalized. 

In 2003, a new Administration proposed a different approach to 

revise the long standing program coal dust sampling.54 As noted 

previously in this Committee report, the regulations in question 

would have permitted an increase in the amount of coal dust to 

which miners could be exposed. On July 10, 2003, Rep. Nick Rahall 

proposed an amendment to bar the use of any funds appropriated 

to the Department of Labor to implement regulations proposed on 

March 6, 2003; and although the amendment failed by 2 votes, the 

Administration halted work on the proposed regulation.55

In the meantime, NIOSH had been working on a new device to 

measure coal dust known as the Personal Dust Monitor (PDM). 

Work began in 1992. Following a long period of laboratory and field 

tests to verify the accuracy of the unit in practice, NIOSH announced success in 2004.56 These devices continuously display a 

miner’s current coal dust exposure, and records the exposures in a 

format that can be electronically downloaded each shift to the operator and MSHA. Instead of waiting weeks for a sample to come 


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57 Evaluation of MSHA’s Handling of Inspections at the W.R. Grace & Company Mine in 

Libby, Montana, Report No. 2E–06–620–0002 (March 22, 2001), http://www.oig.dol.gov/public/ 

reports/oa/2001/2E/06/620/0002.pdf. 58The Seattle Post-Intelligencer published a series of articles on the asbestos-related illnesses 

and fatalities among people living in Libby, Montana, in November 1999. The Senate Committee 

on Health, Education, Labor and Pensions held a hearing on the matter on July 31, 2001, at 

which the new assistant Secretary for Mine Safety and Health, David Lauriski, testified. 59OIG report, Finding B, p.8, op cit. 60 Id. 61Lauriski statement at Senate hearing, note 79. 

back from a laboratory, the PDM provides immediate feedback to 

both miners and operators on coal dust levels. Moreover, it records 

the data in tamper-proof form, enabling it to be used for compliance purposes. There is general agreement among miners and the 

mining industry that the PDM offers a real possibility to resolve 

some of the problems that have plagued the industry since the 

FMSCA was adopted, and help it to reduce current coal dust exposures. 

(b) Asbestos standard. 

In March 2001 the Office of the Inspector General (OIG) of the 

Department of Labor issued a report evaluating MSHA’s enforcement actions at an open pit vermiculite mine owned by W.R. Grace 

& company in Libby, Montana.57 The widespread asbestos contamination at this mine and the surrounding community attracted considerable public attention.58 Miners were exposed to asbestos 

through the processing of the ore, and carried the dust home on 

clothing and personal vehicles, thereby allegedly exposing family 

members. Among other matters examined by the OIG was whether 

MSHA had properly inspected the mine, and appropriate exposure 

sampling of the miners. The OIG found that MSHA had conducted 

regular inspections from 1978 through 1990, and that with a few 

exceptions the laboratory analysis of the asbestos samples showed 

them to be under MSHA’s permissible exposure limit (PEL) for asbestos. Yet miners and their families were clearly becoming ill. Accordingly, the OIG recommended to MSHA that it lower it’s PEL 

for asbestos.59

The OIG noted that MSHA’s PEL of 2 fibers per cubic centimeter 

was established in 1978, two years after OSHA adopted the same 

PEL. In August 1989, the Agency proposed lowering the standard 

by a factor of 10 as part of an effort to revised roughly 620 airborne 

contaminants and impose limits on 145 new substances. A 1992 decision by the 11th Circuit on a similar rulemaking initiative by 

OSHA discouraged MSHA from moving forward with this effort, 

and the PEL for asbestos remained at 2 fibers per cubic centimeter. 

However, unlike MSHA, OSHA reacted to the court decision by 

moving ahead with a new standard just on asbestos, and lowered 

its PEL by a factor of 20 (to 0.1 fiber) in 1994. Accordingly, the 

OIG recommended MSHA now move forward and initiate similar 

rulemaking. 

Unfortunately, efforts to undertake this action have stalled. An 

effort to begin the rulemaking process at the end of the Clinton Administration failed due to the press of other rulemaking business.60

Despite assurances by the incoming Assistant Secretary for Mine 

Safety and Health that the new Administration would give serious 

consideration to the OIG recommendations,61 the agency did not 

ask for any public input until the next year. Thereafter, several 

stakeholder meetings were held, but a notice of proposed ruleVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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62 Unified Agenda, RIN (Regulatory Information Number) 1219–AB24. In addition to lowering 

the PEL, the rulemaking also involves a determination as to whether to incorporate OSHA procedures for the analysis of asbestos samples. 63 48 FR 53280. 64See, e.g., June 18, 2001, article on Occupational Hazards magazine, http:// 

www.occupationalhazards.com/News/Article/34493/ 

OSHAlACGIHlandlNorwoodlDrawlFirelatlHouselHearing.aspx. 65Monforton, ‘‘Appeals Court Upholds HazCom from Industry Challenge, The Pump Handle, 

May 14, 1007; see also The Project on Scientific Knowledge and Public Policy, case study, 

http://www.defendingscience.org/caselstudies/ACGIH-TLVs.cfm. 66 67 FR 42314, June 21, 2002. 

making to lower the PEL on asbestos was not published until July 

2005—a full four years after the commitment of the Assistant Secretary to review the matter. Since then, the agency has extended 

the date for final action on changing this single PEL several 

times.62

(c) Hazard communication standard. 

The Occupational Safety and Health Administration issued a 

standard almost 25 years ago, in 1983,63 to require: 

‘‘chemical manufacturers and importer to evaluate 

chemicals produced in their workplaces or imported by 

them to determine if they are hazardous. . . . Chemical 

manufacturers and importers or employers evaluating 

chemicals shall identify and consider the available scientific evidence concerning such hazards . . . and shall 

treat the following sources as establishing . . . them [as] 

hazardous’’: . . . ‘‘threshold limit values for chemical substances and physical agents in the work environment, 

ACGIH (latest edition).’’ 29 CFR 1910.100(d) 

The threshold limit values (TLVs) are updated from time to time 

by the ACGIH (American Conference of Governmental Industrial 

Hygienists), and as required by the OSHA standard, the latest set 

are among the triggers that require manufacturers, importers and 

employers to treat an item as hazardous. If a substance is hazardous, the Material Safety Data Sheet provided to the end user 

of the substance with the product must indicate that fact and providing various additional information. 

A similar standard was not in effect for mine workers until October 3, 2000, when an interim final rule providing essentially the 

same requirements was issued. 

Since that time, a concerted attack has been made on the use of 

TLVs as the basis for any regulatory action or to trigger the determination of a hazard under the hazard communication rules.64 In 

the case of OSHA, a lawsuit was filed by the National Association 

of Manufacturers in 2006. The industry asserted that in requiring 

chemical manufacturers to use the latest edition of the TLVs, 

OSHA had in essence ‘‘amended’’ its rule and needed to engage in 

notice and comment rulemaking. This assertion was rejected and 

the court dismissed the lawsuit in May of this year.65 In the case 

of MSHA, however, recent regulatory action undermined the use of 

up-to-date TLVs. In 2002, the MSHA hazard communication standard was revised to refer exclusively to the ACGIH TLVs 2001 edition—hence freezing the science to that point in time, and once 

again leaving miners less protected than all other workers in the 

U.S.66 The final rule went beyond this to also freeze in time the 

versions of certain other scientific publications that can define a 


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67For a more detailed discussion, see Monforton, ‘‘Appeals Court Upholds HazCom from Industry Challenge’’, supra note 64. 68 66 FR 5706, January 19, 2001. 69For a history of those procedural challenges, see Monforton, ‘‘Weight of the Evidence or 

Wait for the Evidence? Protecting Underground Miners From Diesel Particulate Matter, American Journal of Public Health, Vol. 96, No. 2, February 2006. 70Letter of January 18, 2006, http://edlabor.house.gov/correspondence/011806ChaoLetter.pdf. 71 Kennecott Greens Creek Mining Company v. MSHA, No. 01–1046, U.S. Court of Appeals (DC 

Cir), decided February 9, 2007. 72Letter of March 7, 2007, http://edlabor.house.gov/correspondence/ 

030707GMChaoLetterDiesel.pdf. 73The Court of Appeals determined that MSHA’s decision to use total carbon (which consists 

of elemental carbon plus organic carbon) as a surrogate for diesel particulate, both at the inhazard: the National Toxicology Program’s Report on Carcinogens, 

and the International Agency for Research on Cancer’s Monograph 

Series.67

(d) Diesel particulate standard. 

Workers in underground metal and nonmetal mines—such as 

salt, limestone, gold, and silver mines—often use diesel-powered 

machines which emit fumes containing fine particles known as 

‘‘diesel particulate matter’’ or DPM. Researchers have concluded 

that exposure to these particles in the average metal or nonmetal 

mine over an eight-hour period can be anywhere from 27 to 162 

times the level of exposure on the streets of Los Angeles over a 

one-year period. Research has also shown—overwhelmingly—that 

such exposure to diesel particulate matter can greatly increase the 

risk of a range of illnesses, from headaches to cancer and heart disease. 

In early 2001, MSHA published regulations to help reduce mine 

workers’ exposure to diesel particulate matter inside metal and 

nonmetal mines.68 This was the first comprehensive health rule 

issued by MSHA during its existence. It followed 5 years of rulemaking, including a lengthy and peer-reviewed risk assessment of 

the risks, a detailed analysis of the economic and technological feasibility of the rule, and procedural challenges to related scientific 

studies.69 The regulations provided for a phased implementation, 

beginning with a lengthy period of compliance assistance prior to 

any enforcement, and concluding in 2006. 

The Bush Administration delayed implementation several times, 

and revised the rule to delay enforcement and eliminate some protective requirements. In January 2006, Democratic members of the 

Committee, responding to a proposal by the Administration to 

delay implementation of this rule for yet another five years, sent 

a letter to the Secretary of Labor opposing this action.70 The Administration ultimately backed away, although it did delay the 

rule’s final implementation date for another 18 months until June 

2008. This year, the District of Columbia Court of Appeals recently 

rejected continuing industry challenges to the rule.71

The Committee remains concerned that irresponsible mine operators might try and take advantage of loopholes the Bush Administration created for them to avoid compliance. Chairman Miller has 

made it clear that he wants to be informed anytime the Secretary 

grants an extension of time to a mine operator for compliance with 

the requirements of a critical health rule.72 Nevertheless, in light 

of its understanding that all challenges to final implementation of 

the rule have been withdrawn, and that the Department will implement the final limit in June 2008 using the required measurement method (total carbon, not elemental carbon),73 barring furVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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terim and final exposure levels established by the rule, was not arbitrary and capricious, although it has interferences that must be taken into account in sampling and compliance determinations. The Court also determined that MSHA could also use elemental carbon alone as a 

surrogate for diesel particulate matter at the original interim compliance limit based upon data 

establishing that at this level, a conversion factor could be established enabling MSHA to reliably convert an amount of elemental carbon to an amount of total carbon. The court noted that 

MSHA did not yet have a reliable basis for using elemental carbon as a surrogate for dpm at 

other exposure limits required by the rule. See Section III of the decision, pp. 11–16. The Committee understands NIOSH is not able to provide MSHA with a reliable elemental carbon to 

total carbon conversation factor for this purpose because at such low levels, the ratio varies significantly depending upon such factors as equipment operation. The Committee emphasizes that 

the Court found the use of total carbon, with appropriate sampling rules to deal with the possible interferences, to be a perfectly acceptable approach, and it expects the agency to proceed 

to implement its own determination in that regard. 74Similar, but not identical. Moreover, the standard of review for MSHA standards, ‘‘arbitrary 

and capricious’’, is much more flexible than the standard for review under OSHA and applied 

by the 11th Circuit. Nevertheless, given all of MSHA’s other regulatory obligations, a decision 

to spend a substantial amount of time on a rulemaking that will certainly be subject to challenge would be a difficult one. 75MHSA issued a proposed rule on August 29, 1989, 54 FR 35760; the history of the rulemaking is discussed in the proposed rulemaking document. 76 H.R. 3160, the ‘‘Comprehensive Occupational Safety and Health Reform Act’’, Rept. 103–

663. See p. 67, discussion of section 405 of the bill. 77 Reaching a Consensus to Update OSHA’s Permissible Exposure Levels, Hearing before the 

Subcommittee on Workforce Protections, July 16, 2002, Serial No. 107–72. 

ther events that warrant otherwise, the Committee has decided 

that legislation to finally put this rule fully into place is not required. 

(e) Permissible exposure limits. 

As discussed in connection with asbestos, MSHA has not been 

able to update hundreds of permissible exposure limits (PELs) because of concern about an 11th Circuit court decision in 1992 prohibiting its sister agency, OSHA, from taking a similar approach 

under similar language.74 An effort to update the PELs, initiated 

by MSHA in 1983 75 was put on hold as a result of the Court’s decision. 

MSHA would need considerable additional resources to address 

these items one at a time, and the experiences with asbestos and 

diesel particulate matter provide examples of how complex individual rulemakings can become—and how long it takes to get them 

in place—if there is significant pushback from determined opponents. Accordingly, attention turned to the possibility of a legislative solution. Legislation that would have addressed OSHA’s problem was reported out of the Committee 15 years ago, on July 9, 

1992.76 The bill was not enacted. A decade later, on July 16, 2002, 

a hearing was held by the Subcommittee on Workforce Protections 

to explore whether a consensus could be reached on how to resolve 

the problem in the OSHA context.77 Despite the efforts undertaken 

by the then Chairman of the Subcommittee, Charlie Norwood, and 

by others, no consensus was achieved. 

It is now more than 15 years since the 11th Circuit issued its 

opinion, and the Committee believes it is high time to act on this 

matter with respect to the health of miners. The approach taken 

to updating MSHA’s PELs does not necessarily have to be the one 

taken to updating OSHA’s PELs, and the Committee believes there 

is no need to await development of an approach for the latter to 

move ahead on the former. 

(4) Limited scope of the MINER Act. 

The mining industry has repeatedly challenged the need for legislation to enhance the 2006 MINER Act, which was enacted in 


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June 2006 after a month after the tragedy at Darby and 6 months 

after those at Sago and Aracoma Alma. 

The MINER Act was never intended by the Congress to be the 

last word on mine safety and health. Both members of the Senate 

and the House made this clear in their statements. There are five 

reasons why additional action is required. 

In the first place, the MINER Act addressed some issues of concern to the Congress on only an interim or incomplete basis. For 

example: • Enhanced communication and tracking systems. To provide 

time for fully wireless two-way technology to be developed, the 

MINER Act did not require it to be installed until June 2009, 

and provided for further delays if it is not ready. The Congress 

recognized that developments in this area might require adjustment. • Underground refuges. The MINER Act required NIOSH to 

study the capabilities of these chambers and report its results 

to the Congress. • Explosion-proof seals. The MINER Act required MSHA to 

take rulemaking action, and the agency has established interim rules that meet the NIOSH recommendations. • Conveyor belt technology. There are miles of conveyor belts 

in underground mines to carry materials to the surface, and 

the existing rules on the resistance of these belts to flame are 

about 50 years old. The MINER Act established a task force to 

examine the problem and it recently reported its recommendations. The MINER Act did not, however, require MSHA to 

adopt these recommendations or take any other appropriate action. • ‘‘Belt air’’. This is the practice in underground coal mines 

of using the passageway that brings air to the miners at the 

face for the conveyor belt system to take coal out of the mine. 

The MINER Act established a Technical Review Panel to study 

the matter and it recently released its recommendations. The 

MINER Act did not, however, require MSHA to adopt these 

recommendations or to take any other appropriate action. 

• Compliance. The MINER Act required the adjustment of 

some penalties and the addition of others to encourage compliance, but did not upgrade other key components of MSHA’s 

toolkit, including its ability to collect outstanding violations, 

the definition of a pattern of violations, and MSHA’s need for 

subpoena authority. 

Second, the Sago, Aracoma Alma, and Darby reports issued after 

passage of the MINER Act have raised additional issues: 

• Stoppings. To get air to miners working at the ‘‘face’’, giant 

fans blow air through a set of passageways designed for that 

purpose. The walls of these passageways are known as 

‘‘stoppings’’. The rescue teams at Sago were required to take 

the time to replace stoppings blown out by the explosion, cutting off air to where the miners were trapped and extending 

the time needed to get to the miners who were running out of 

air. 

• Lightning. The MSHA report on the Sago accident, backed 

by research from Sandia national laboratories, determined that 

the explosion in that mine was ignited by lightning traveling 


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straight through the earth without any metal conductor and 

into an abandoned piece of wire cable. Technology to deal with 

this newly revealed power of lightning has not been developed. • SCSR reliability. The self-contained self-rescuers provide 

breathing air for escape through toxic fumes. Mine operators 

were required to make many more available under the MINER 

Act. No actions were required, however, to strengthen the government’s program to randomly survey these SCSRs to check 

for deficiencies. The miner who survived the Sago tragedy revealed that some of the SCSR units may have been faulty. 

Third, the Congress did not have the benefit of oversight activity 

at the time it acted. Had there been a more active oversight program in the 109th or other recent Congresses, the Congress might 

well have proceeded to address some further issues like: • Miner rights have been undermined. Safety and health 

hazards reported to MSHA by phone have often been ignored 

in recent years. Whistleblowers are often blacklisted in the industry, and miners and families don’t trust MSHA to protect 

their identities. Those who complain about blacklisting may 

have to go through the grievance process before their cases can 

be adjudicated. And the law is not clear that trapped miners 

or their families can designate miner representatives. • Black lung is back. NIOSH has confirmed that more miners are coming down with the disease, some of them still relatively young. Worries about current protections are of long 

standing—some miner operators were convicted of tampering 

with the measuring instruments used to determine compliance, 

NIOSH recommended an exposure limit half of that in the 

statute, and the UMWA pointed out that miners were now 

working longer shifts than in 1969 and hence needed a lower 

limit just to stay even with the exposure limit set in 1969. 

Meanwhile, under the direction of NIOSH, new technology to 

more accurately and securely measure coal dust exposure has 

been developed, but it cannot be utilized for compliance purposes unless the law is changed. 

• Other health protections have been allowed to slowly erode. 

Most of the rules protecting miner safety and health consist 

simply of a ‘‘permissible exposure limit’’ or PEL, that cap the 

amount of a substance to which a miner may be exposed during a shift. Most of these limits were established decades ago. 

Over the years, NIOSH has recommended that many of the 

PELs be reduced to reflect its findings that the current limits 

do not provide adequate protection against serious diseases, including various cancers. In the late 1980s MSHA undertook an 

effort to update these limits en masse, but court decisions and 

industry opposition brought the effort to a halt. The agency 

lacks the capability to update each of the PELs through a separate rulemaking. 

• This Administration has delayed action or rolled back specific health protections. Among other actions, this Administration has refused to move forward with a rule to put asbestos 

exposure standards in this industry on a par with other industries, and it has weakened what was previously uniform set of 

rules to let workers know of the hazards in the products they 

are using on the job (hazard communication rule). 


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78 U.S. Senate Appropriations Labor, HHS, Education Subcommittee, Testimony of Richard 

Sticker of the U.S. Mine Safety and Health Administration, Wednesday, February 28, 2007, 

http://www.nma.org/pdf/congltest/022807lstickler.pdf. 79http://www.cdc.gov/niosh/mining/mineract/emergencysupplementalappropriation.htm. 80See, e.g., Ken Ward Jr., ‘‘Bush Administration ‘weak link’ Byrd says, Charleston Gazette, 

October 9, 2007. Subsequently, the Committee received data that MSHA has a similar problem 

in the metal and nonmetal sector. 81 As of mid-November 2007, these increases are proposed only, since the appropriations bill 

containing them has not yet been agreed to by the White House. 

Fourth, the Congress learned this year of some critical problems 

of which it was unaware, as a result of the Crandall Canyon tragedy. These included: • Retreat mining is dangerous and poorly regulated. 

Crandall Canyon threw light on the risky nature of retreat 

mining, and the insufficient oversight of retreat mining plans 

by MSHA. • MSHA’s authority to control rescue efforts is unclear. Agency officials have expressed doubt about their authority to compel operators to provide needed personnel and equipment if 

they take over a rescue site. • MSHA does not have its own emergency response plan. The 

Governor of Utah was highly critical of the lack of advance 

planning for coordination with state and local authorities at 

Crandall Canyon. • The law does not provide a mechanism for independent investigations of multiple-fatality mine accidents. Both the House 

and the Senate have been forced to initiate our own investigations of the Crandall Canyon accident for this reason. 

And finally, the Crandall Canyon tragedy pointed out that a key 

provision in the MINER Act needs to be strengthened. • Family and press liaison. The MINER Act specifically required MSHA to be in charge of communicating with families 

and the press during a rescue in order to ensure that incorrect 

and misleading information does not get disseminated. The 

first test of this new authority was at Crandall Canyon, and 

it failed miserably. 

(5) New resources and research are vital to help solve the problems identified by the Committee, but alone they are not enough. 

As previously noted, the current Administration’s track record in 

carryout out federal mine safety and health law has been troubling, 

and included budget and staffing cuts at MSHA. Efforts to reverse 

this decline began in 2006 after the accidents that year revealed 

one of the consequences of making such cuts. The Emergency Supplemental Appropriations Act of 2006 (PL 109–234) provided an ad- ditional $26 million for MSHA to strengthen its coal enforcement 

program by hiring and training 170 additional coal mine personnel.78 NIOSH received a special allocation of $10 million, available for 18 months, to focus on the development of new technologies to provide miners with better emergency escape devices, 

refuge chambers, and advanced communication and tracking systems.79 This year, yet more funds are being sought by the Congress 

in the regular appropriations bill—to continue to employ the extra MSHA personnel, to provide MSHA with an additional $10 million 

following news reports that MSHA lacked enough personnel to 

carry out its regular quarterly inspections of underground coal 

mines,80 and to increase NIOSH funding by $13 million to continue 

its efforts.81


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82See, for example, the discussion with Melissa Lee, Chuck Knisell, and Tony Oppegard during the Committee’s hearing on March 28, 2007, ‘‘Protecting the Health and Safety of America’s 

Mine Workers’’. 

While the extra funding for inspectors will help reverse the decline in the capability of the agency in recent years, it alone is not 

enough to address all of the agency’s problems. Here are a few examples of why this is the case—

• Outdated personnel and retirement rules limit agency use of 

resources. The loss of experienced personnel through retirement 

makes it hard for the agency to retain its expertise, let alone add 

additional inspectors. The Committee understands there is not intense competition for good candidates due to an expanding mine industry, and it takes time needed to get trained personnel in place. 

The current personnel and retirement rules make it difficult for 

MSHA to make use of senior personnel as they transition. 

• Locating mine hazards requires more than MSHA inspectors. 

Miners and their families know where the hazards are, but they 

are reticent to step forward—in part because they do not believe 

MSHA will follow up, and in part because they are worried about 

retaliation.82

• Inspectors must be free to enforce the law. Some of the reports 

of the accidents that occurred in 2006 indicate that agency inspectors in some offices had come to believe their job was to provide 

compliance assistance, rather than to require compliance. 

• Some mine operators need more of an incentive to comply 

when the inspector is not present. While the vast majority of mine 

operators comply with the law, a significant minority continue to 

ignore its requirements. While the provisions of the MINER Act 

and MSHA’s revision of its assessment rules this year should help, 

the agency still lacks effective tools to collect outstanding penalties, 

to subpoena information about mine ownership, to close down 

mines that fail to abate, and other authority needed by inspectors 

to compel responsible action. 

• Inspectors can only enforce the rules that are in place, and the 

agency’s rulemaking process is slow and broken. The discussion of 

health rules, supra, provides a few examples. 

• Inspectors can only enforce the ‘‘law of the mine’’. Existing 

safety and health rules have been weakened through variances for 

individual mine owners and the specifics of mine plans that determine what actually is required in a particular mine. The example 

of belt air is instructive. The Congress actually established a safety 

rule in the law that prohibited its use. Yet over time, exemptions 

were granted under authority given the agency to provide flexibility, and eventually these exemptions became the rule. 

The provisions of the S-MINER Act will help address these and 

other problems that make it very difficult to protect miners from 

known safety and health hazards. 

(6) Summary. 

The Chairman of the Committee has succinctly summed up the 

reason why this legislation is necessary: 

‘‘The legislation we are considering today, the S-MINER 

Act, builds on the work that Congress started last year 

when it passed the MINER Act of 2006. The S-MINER Act 

represents a comprehensive approach to minimize the 


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83 Introductory statement of Chairman Miller at markup of the bill, October 31, 2007. 84Testimony before the full committee, March 28, 2007, http://edlabor.house.gov/testimony/ 

032807CecilRobertstestimony.pdf. 

health and safety risks facing miners. Our aim is a simple 

one: We want to do everything we can to ensure that miners are able to return home safely at the end of their 

shifts.’’ 83

The provisions of the S-MINER Act address three broad issues: 

disaster prevention; improved emergency response; and long-term 

health risks. 

The requirements to boost disaster prevention include: 

• Closer scrutiny of retreat mining plans and implementation. 

• Adopting NIOSH recommendations and MSHA’s temporary 

emergency standard for improved seals. 

• Ensuring explosion-proof stoppings. 

• Adopting technical panel recommendations on conveyor belt 

composition. 

• Adopting technical panel recommendations on belt air and imposing related restrictions on the use of this ventilation practice. 

• Providing for research on the risks of lighting storms and coal 

dust. 

• Encouraging compliance with the law. 

• Strengthening the enforcement of miner rights. 

The requirements to improve emergency response include: 

• Clarifying MSHA’s authority to control rescue efforts. 

• Strengthening MSHA’s family and press liaisons. 

• Requiring MSHA to develop its own emergency response plan. 

• Establishing a procedure for independent investigations of 

major mine accidents to supplement the investigations performed 

by MSHA. 

• Enhancing the capabilities of underground communication and 

tracking systems. 

• Providing for the installation of underground refuges to protect 

trapped miners awaiting rescue. 

• Ensure the reliability of self-contained self-rescuers required 

for escape. 

The requirements to reduce long-term health risks include: 

• Revising the decades old rules on exposure to coal dust and the 

methods for determining compliance with the exposure limit. 

• Requiring MSHA to adopt an updated standard on asbestos, 

and to roll back a recent change in its hazard protection standard, 

to make both consistent with the rules applicable in all other industries. 

• Establish a procedure to enable MSHA to update permissible 

exposure limits, including a careful examination of feasibility 

where there is credible evidence of a problem. 

In conclusion, the Committee agrees with the following statement by the current International President of the United Mine 

Workers of America, Cecil Roberts: 

‘‘When it wrote the Mine Act, Congress, in its infinite 

wisdom stated that this Nation’s most precious resource is 

the ‘‘miner.’’ This held true then and must hold true today 

and into the future.’’ 84


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V. SECTION-BY-SECTION ANALYSIS

Section 1—Short Title.—This Act may be officially referred to by 

either its full title or its acronym. A table of contents is provided. 

Section 2—Sense of Congress.—This section briefly explains why 

Congress has elected to address mining health and safety again 

only one year after it legislated on this topic. 

Section 3—Definitions; References.—This section generally provides that key terms and references in this statute refer to provisions of the Mine Safety and Health Act of 1977. 

Section 4—Supplementing Emergency Response Plans.—This section enhances various requirements of the 2006 MINER Act. 

(a) Post Accident Communications.—Prior to 2006, communications between the surface and underground coal mines often consisted of only a single unprotected phone line that could be severed 

easily during a fire or explosion. Communications were disrupted 

often during emergencies—just when they were needed the most—

when fire, explosion or rock falls interrupted the phone line. Similarly, in the event of an emergency, mines do not have systems 

that can reliably locate where the miners are underground to facilitate rescue. Among the most important goals of the MINER Act 

was to bring modern technology into underground mines to address 

these problems. 

As a short-term fix, the MINER Act requires operators of underground coal mines to install a second telephone line in a different 

passageway to provide some redundancy should the primary system be interrupted. This requirement is now being implemented on 

a mine by mine basis. 

For a more permanent fix, the MINER Act requires mine operators to install more advanced communication systems by June 15, 

2009—systems that can survive accidents like those in 2006 and 

function in a post-accident environment. The MINER Act specifically refers to ‘‘wireless two-way’’ communication systems as a goal, 

referring to a technology that would not require any reliance upon 

a wire (although it provides for a backup should such technology 

not be available). The National Institute for Occupational Safety 

and Health (NIOSH) has been given additional funding to begin 

tests of systems that could meet this requirement and to work with 

other federal agencies that might be able to provide useful assistance. The MINER Act does not require mine operators to take any 

action prior to June 15, 2009, other than secondary phone lines, to 

enhance underground communications. 

After the MINER Act was passed, the State of West Virginia required mine operators to install systems that would provide enhanced communications and tracking capabilities underground 

much more rapidly, but which would not have to be fully ‘‘wireless 

two-way systems’’. Mine operators in that state expressed concern 

because they recognized these systems would probably need to be 

replaced should fully ‘‘wireless two-way’’ communication systems be 

developed and the Federal requirement to install them go into effect in June 2009. In addition, the tragedy at Crandall Canyon 

again brought to everybody’s attention the problem with waiting 

until mid-2009 to require mine operators to promptly adopt more 

enhanced systems. Moreover, based upon its research to date, 

NIOSH has expressed concern that a truly ‘‘wireless two-way’’ sysVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00051 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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tem might not be technologically feasible by June 2009, if ever. The 

result has been to focus considerable attention on whether appropriate ‘‘gap filler’’ systems based on existing technologies can and 

should be installed now in underground coal mines in all States. 

NIOSH is continuing to test a variety of systems based upon existing technologies and has had encouraging results with many of 

them. As a result, it has developed a roadmap that would provide 

for the installation and gradual upgrade of such ‘‘gap filler’’ technologies. In fact, the roadmap contemplates that, by 2009, mine 

communication systems based on existing technologies will be able 

to survive the kind of accidents that occurred in 2006 and 2007. 

These systems are based on ‘‘backbones’’ available today. A ‘‘leaky 

feeder’’ backbone, for example, consists of a co-axial cable, similar 

to one delivering a TV signal to a home, but from which some of 

the signal can ‘‘leak’’ to nearby reception devices. While some of the 

components of this system are still being adjusted to provide more 

cost-effective and efficient performance, installing just the leaky 

feeder backbone now will immediately provide miners much better 

protection than the redundant phone line which the MINER Act 

currently requires; it is not expensive to install. Based on information received since the S–MINER Act was introduced, including 

comments from NIOSH, the bill has been amended by the committee to permit systems based on ‘‘wireless mesh’’ backbones to be 

used for this purpose. 

As introduced, the bill provided that such gap-filler systems are 

to be ‘‘hardened’’ to the extent possible (i.e., buried in a mine floor) 

to help ensure their survivability. The term ‘‘hardened’’ has caused 

some confusion. Based on technical comments from the mine industry and NIOSH, the Committee-reported version has revised this 

requirement to make its intent more clear. Specifically, the reported bill requires these systems to be ‘‘enhanced physically, electronically, or redundantly’’ to improve their survivability in the 

event of a mine accident. 

Because getting improved communications systems in place is so 

critical to miner safety, the bill would require mine operators to 

amend their emergency response plans to provide for the installation of such gap-filler technologies within 120 days of enactment of 

the S–MINER Act. As NIOSH certifies new components to enhance 

system performance, mine operators are to revise their emergency 

response plans promptly to incorporate the upgrades. 

The approach used in both the MINER Act and S–MINER Act 

to implement emergency response requirements in underground 

coal mines is one that provides appropriate flexibility, but also 

comes with significant risk of delay. The Committee has repeatedly 

expressed its concerns to the Secretary of Labor about the slow 

manner in which mine operators have been coming into compliance 

with the MINER Act; indeed, the most recent information received 

by the Committee shows many mines still not in compliance with 

a number of that law’s requirements almost 18 months after enactment. In implementing the requirements of the S–MINER Act, the 

Committee expects the Department of Labor to closely guard 

against delays in the installation of the required systems. 

While the S-MINER Act would not ban the use of electronic communication and tracking systems for non-emergency purposes, it 


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would prohibit miner discipline based upon data collected by such 

systems. 

(b) Underground Refuges.—The accident reports on the Sago 

mine disaster in 2006 issued by the Department of Labor and others since the enactment of the MINER Act have clarified how 

sealed and equipped underground refuges could have saved the 

lives of miners who had nothing more than wood boards and cloth 

with which to try and protect themselves from toxic fumes while 

they awaited rescue. Moreover, the research required by the 

MINER Act has been completed substantially and confirms the lifesaving value of such refuges. Unfortunately, the MINER Act did 

not take the next step and require the Department of Labor to take 

action to ensure refuge chambers are installed in underground 

mines, and the testimony of the Assistant Secretary for Mine Safety and Health before this Committee suggests there is little likelihood that the agency will move forward without explicit Congressional instruction. 

As introduced, the bill provided for the installation of some underground refuges by December 15, 2007. The bill provided that a 

mine’s emergency response plan was to provide for underground 

refuges within one thousand (1,000) feet of the nearest working 

face in each working section, meeting such criteria as the Secretary 

of Labor certifies are as protective as the requirements in any state 

which already requires such refuges. The bill ensured that any 

state which already has such requirements in place would not have 

to take further action at this time. The intent of the bill was to 

bring underground coal mines in all states up to par with requirements the Committee understood were to go into effect in mid– 2007 in the State of West Virginia. This requirement has been 

eliminated from the Committee-reported bill. 

The reported bill retains the provision in the introduced legislation that requires the Secretary, by June 15, 2008, to issue final 

interim regulations for the installation of refuges in the working 

areas of underground mines that are consistent with design criteria 

recommended by NIOSH. However, the reported bill contains a 

number of modifications recommended by NIOSH, the mining industry and miner representatives. 

First, the reported bill ensures that the refuge requirement can 

be met through multiple alternatives—portable rescue chambers, 

refuge shelters carved out of the mine workings and sealed with 

appropriate bulkheads, or by other refuge designs that will provide 

miners with equivalent or better protection. 

Second, the reported bill provides for the maintenance of a mobile shelter within 500 feet of the nearest working face in each 

working section of an underground coal mine. The Committee 

wants to ensure that miners can reach a shelter quickly after an 

accident, and believes the 1,000 foot distance initially contemplated 

is too far for a miner to travel using a single self-contained selfrescuer (SCSR) to reach a safe haven should there be toxic fumes, 

dust, fire or other impediments to escape. The Committee recognizes that some in the industry are concerned that miners working 

out by the face would actually have to travel back toward it to 

reach such a shelter; however, the Committee does not intend this 

particular shelter to be a substitute for others placed at appropriate intervals consistent with NIOSH recommendations. 


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The reported bill retains the requirement in the introduced bill 

that underground coal mine emergency response plans are to be 

amended to provide for the installation of underground refuges 

within 60 days following plan approval. The Committee’s intent is 

that, following the issuance of the interim regulations, each emergency response plan will have to include such a requirement the 

next time it is submitted for MSHA approval, a process required 

every six months on a schedule initiated by the MINER Act; and 

that once in the plan, implementation will be prompt. Because of 

the rulemaking process, mine operators will have plenty of notice 

about this requirement; indeed, a review of existing emergency response plans reveals that many mine operators have already placed 

orders for refuge chambers in order to implement the existing 

MINER Act requirement for ‘‘breathable air’’ supplies for trapped 

miners. While the Committee recognizes that supply shortages may 

develop, it does not expect that the Department of Labor will exacerbate the problem by permitting a mine operator to elect to wait 

for a very popular brand or chamber design rather than requiring 

the operator to choose another perfectly suitable design that can be 

timely installed and can provide similar protection—which is actually what the Department did do with the SCSRs required under 

the MINER Act. 

(c) Improvements to Seals, Ventilation Controls, and Rock Dusting to Limit the Damage From Explosions.—This subsection increases the strength of various wall-like structures in underground 

coal mines to enable them to resist explosions and also requires the 

explosive risks of coal dust to be studied and appropriate action 

taken in light of the results. 

Paragraph (c)(1) would repeal Section 10 of the MINER Act, 

which is a free-standing requirement for rules to improve minimum 

standards for mine seals. This repeal is coupled with the next paragraph of the bill, which establishes new requirements on seals as 

a permanent part of the Federal Mine Safety and Health Act of 

1977 (the ‘‘FMSHA.’’). The purpose of the amendment is to give 

MSHA a few more months to finalize rules for mine seals. Under 

the 2006 MINER Act, the rules were to be finalized by December 

31, 2007; under the reported bill, MSHA will have until three 

months after enactment of the S–MINER Act. The Committee decided to provide this extra time to avoid the need for MSHA to act 

twice to replace the emergency temporary rules now in effect. The 

Committee notes that MSHA’s existing emergency temporary 

standard, issued May 22, 2007, will remain in effect until February 

21, 2008 (nine months after issuance, pursuant to section 101(b) of 

the FMSHA). Given the familiarity of the underground coal sector 

of the mining industry with the basic requirements and the seriousness of permitting a gap in protection, the Committee presumes 

that MSHA will complete action in time to avoid such a gap and 

will likewise make the rules effective promptly in this sector. In 

the event that the Congress does not move quickly to enact the S–

MINER Act, MSHA will have to proceed to issue a final rule by the 

end of 2007 under the existing law, in which case the repeal will 

have no practical effect; it is certainly not intended by the Committee to invalidate any MSHA rulemaking action issued pursuant 

to the current law. 


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Paragraph (c)(2) would add additional requirements to those already in the FMSHA concerning the installation of mine seals. 

‘‘Seals’’ are structures used to segregate abandoned areas of the 

mine from working areas and need to be able to contain an explosion should one occur in the abandoned area. The tragedies in 2006 

clearly revealed that the ‘‘seals’’ used to separate abandoned areas 

of the mine from working areas did not meet the ‘‘explosion proof’’ standard in the Coal Act of 1969. 

First, the bill requires that MSHA inspect all seals under construction after the date of enactment of the S–MINER Act during 

at least part of their construction to ensure that the mine operator 

is performing the work properly. While MSHA must approve the 

plans for such construction, inspection during construction is necessary to ensure that each is being constructed in accordance with 

their approved design plans. The bill does not preclude supplemental examinations by qualified personnel on behalf of the mine 

operator. 

Second, the bill requires MSHA to issue final rules within three 

months of enactment regarding the approval, design, construction, 

inspection, maintenance and monitoring of underground coal mine 

seals that meet the most recent recommendations of NIOSH unless 

otherwise provided in the S–MINER Act. The original bill would 

have gone beyond the NIOSH recommendations (and MSHA’s 

emergency temporary standard) by requiring that all seals be monitored. Based upon information from the mining industry, miner 

representatives and the Administration, the reported bill no longer 

includes such a requirement. 

Generally, the reported bill will require the final rules to be consistent with the emergency temporary rules issued by MSHA in 

May 2007. The key requirement is that current and future seals 

must be designed and installed to withstand a constant total pressure of 240 pounds per square inch, using a static structural analysis, or be monitored. The MSHA emergency temporary requirement includes a similar requirement, using a dynamic pressure 

analysis; this bill would require that seals meet the static pressure 

test. The Committee understands that, notwithstanding the fact 

that the emergency temporary standard has been in effect since 

May 2007, applies to existing seals and is presumably already 

being enforced by MSHA, some operators may be seeking to change 

the final rule to permit the exemption of older seals from these requirements. The Committee wishes to emphasize that the age of 

the seal is irrelevant to its safety and the reported bill would make 

no such exemption. 

The bill would establish some requirements for monitoring those 

seals not meeting the 240 psi standard which are not in the MSHA 

emergency temporary standard, because the Committee was dissatisfied with those requirements. These new requirements ensure the 

quick transition to continuous monitoring devices used in other 

countries, which is important because the pressure on both sides 

of seals changes constantly due to passing storms and even daily 

atmospheric pressure changes. The distinction made in the emergency temporary standard between ingassing and outgassing for 

purposes of monitoring was without foundation. The changes in the 

S–MINER Act ensure adequate sampling behind seals, and for the 

use of boreholes for sampling, while ensuring that sampling and 


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borehole pipes are designed to minimize safety hazards associated 

with their use. The changes also establish a safety margin for the 

pressures behind the seals. Again, the final requirements in this 

regard are informed by information supplied by the mining industry, the Administration, and miner representatives. 

Finally, the bill would also require that action plans for sealing 

and repairing seals spell out specific actions the mine operator 

must take to protect miners during the critical time period immediately after sealing or repair takes place. This is necessary because it is during this time that methane gas behind the seal is 

building up and going through an explosive range before it becomes 

inert. Once the gas reaches the inert level and the seal is fully 

cured, the new requirements on seal integrity or monitoring should 

keep the risks in check. 

Underground metal and nonmetal mines which naturally emit 

methane also use seals. See section 4(k) for the requirements which 

the reported bill would establish for seals in that sector. 

Paragraph (c)(3) would amend the existing requirements of the 

FMSHA to establish new requirements to ensure the integrity of 

ventilation controls. ‘‘Ventilation controls’’ refer to structures that 

segregate ventilation channels to preserve the flow of air. The term 

‘‘stoppings’’ is often used to describe structures that separate passageways in the working areas of the mine and channel ventilation 

to and from the areas where miners are working. Stoppings must 

be able to resist overpressures caused by explosions. If stoppings 

fail, miners and rescue workers do not have the air they need and 

smoke can spread into rescue passageways (as at Aracoma). Tests 

by NIOSH in 2006 revealed that the stoppings now in use in many 

mines, particularly metal stoppings, are much less able to resist explosive forces than the traditional concrete block stoppings. These 

results were akin to the findings that seals constructed with nontraditional materials like Omega block were not as strong as their 

more traditional counterparts. 

The introduced version of the bill would have required various 

ventilation controls in addition to stoppings to be constructed only 

of concrete blocks laid wet and sealed on one side. Based on information from industry, miner representatives and the Department 

of Labor, the provision has been revised to focus exclusively on the 

stoppings, and to permit the use of hollow concrete block in certain 

situations. Specifically, the reported bill would require that, no 

later than one year after enactment, the Secretary issue interim 

final regulations requiring that stoppings be constructed of solid 

concrete blocks laid wet and sealed on one side, except that 

stoppings constructed during retreat operations would be permitted 

to be constructed of hollow block. Metal stoppings would not be permitted. 

Paragraph (c)(4) would create a study to determine whether today’s rock dusting practices, which have been in place for more 

than 30 years, adequately address the explosion risks presented by 

coal dust in the mine atmosphere. ‘‘Rock dusting’’ is an essential 

tool in limiting in-mine explosions. Coal dust can propagate an explosion generated by an ignition and, not infrequently, generates 

secondary explosions if it has not been properly limited. Coal dust 

is made less explosive by removing it from areas near ignition 

sources (e.g., conveyor belts) and by treating it with rock dust. SecVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00056 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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tion 304(d) of the FMSHA sets forth the current statutory formula 

for how much rock dust must be added to coal dust. The coal dust 

generated by the longwall equipment used in many coal mines 

today is believed to be finer than what was generated in the past, 

and hence likely to be more explosive. If so, this means that miners 

today may be at increased risk if the rock dusting is limited to the 

traditional amounts. 

The bill would require NIOSH to conduct a study of the matter 

and issue recommendations by June 15, 2009 that would require 

the Secretary of Labor to take appropriate action in light thereof, 

including the issuance of an emergency temporary standard should 

the study indicate that the risks to miners are significant enough 

to justify such action. 

(d) Limiting Conveyor Belt Risks.—While the conveyor belt fire 

at the Aracoma Alma mine would not have spread had normal 

safety precautions been taken, the fire nevertheless pointed to the 

fact that conveyor belts do catch fire and such fires are dangerous. 

The belt systems create friction through their constant movement, 

which can ignite the belts themselves. There are miles of such belt 

in underground mines, both coal mines and other mines. The current standards for belt flame resistance are 52 years old, and were 

to be updated to meet NIOSH recommendations when the rulemaking was halted by the current Administration. A practice 

known as ‘‘belt air’’ can make matters worse in underground coal 

mines because it uses the passageway normally reserved for the 

conveyor belt as an intake air channel; should a fire begin, the fire 

is carried toward where miners are working. Banned by the 1969 

Coal Act, belt air was authorized from time to time by MSHA pursuant to its authority under section 101(c) of the FMSHA to modify 

existing safety standards where mine operators agreed to provide 

equivalent or better protection and came into more widespread use 

when the current Administration established a rule permitting its 

use. 

The 2006 MINER Act established a Technical Study Panel to 

study and develop recommendations on these two matters. While 

the Panel’s final report is not due to be issued until the end of 

2007, it has already issued its recommendations. The MINER Act 

did not require the Department of Labor to take any action based 

on those recommendations, and the testimony of the Assistant Secretary for Mine Safety and Health before this Committee suggests 

there is little likelihood that the agency will move forward on its 

own without explicit Congressional instruction. 

Paragraph (d)(1) would require MSHA to issue interim final regulations by January 31, 2008 to put new standards for conveyor 

belts into place. While this is a tight timeframe for regulatory action, the requirements in question are not complex and MSHA had 

developed an extensive rulemaking record prior to halting the rulemaking. 

The bill reported by the Committee ensures that all conveyor 

belts already in use in underground coal mines are replaced no 

later than December 31, 2002 with belts that can meet the flame 

resistance requirements recommended by NIOSH and which limit 

smoke and toxic emissions. The bill further requires that any conveyor belt installed in a coal mine after the date of enactment is 

to meet the new requirements. 


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The mandate and recommendations of the Technical Review 

Panel were confined to flame resistance. Since it began work, however, both the Panel and the Committee has been advised that belt 

fabric is currently available which meets not only the NIOSH flame 

resistance standard but which also can reduce the smoke and toxic 

emissions that actually lead to death in the closed environment of 

underground mines. Accordingly, the reported bill requires the use 

of belt material which can simultaneously reduce all three risks. In 

this sense, the reported bill is consistent with the recommendations 

of the Technical Review Panel but expands upon them to provide 

additional protections. 

The timeframe for converting to the new belts has been the subject of concern from both the industry and miner representatives. 

Conveyor belts are expensive and, depending upon use, can last 

many years. Moreover, some operators have supplies on hand that 

have not yet been installed. On the other hand, the risks of conveyor fires are real. Moreover, the new belts cost more than the old 

belts because of the extra protection, and this may well encourage 

some mine operators to use older belts longer than they should in 

order to save replacement costs, leading to a deterioration that 

could well ignite fires. The bill reported by the Committee seeks to 

strike an appropriate balance between these interests in order to 

bring about a timely but not overly costly conversion to the safer 

belt fabric. 

For the requirements the bill would establish for conveyor belts 

used in underground metal and nonmetal mines, see the discussion 

of section 4(k). 

Paragraph (d)(2) would restrict—but not eliminate—the practice 

of using ‘‘belt air’’ to ventilate the Nation’s underground coal mines. 

Mines which cannot create separate intake and conveyor belt 

entryways because of safety considerations (e.g., ground control 

problems that would risk a cave-in if another entry to be created) 

would be authorized to apply for permission to use belt air. Operators of these mines would have to seek case-by-case approval of 

their applications by applying for a modification from existing safety standards, just as they did for many years. Finally, if MSHA 

permits a mine to use belt air, the mine must follow all the recommendations on belt air use that have been established by the 

Technical Review Panel. 

The original bill would have banned belt air entirely, but the 

Committee has found that there are some locations in the country 

where the practice may be needed to mine underground coal safely 

(e.g., Utah, Alabama and some parts of West Virginia). As a result, 

the bill would allow the practice to continue in this limited class 

of situations—provided certain processes and safeguards are observed to minimize the risks. 

The modification process under section 101(c) of the Act provides 

for a public notice of an application for belt air use and an opportunity for a public hearing upon request. This is to ensure that the 

miners and others who may have information relevant to the application can be heard. Court challenges are permitted, just as with 

a standard, since a modification creates a new standard for a particular mine. 

All mine operators with existing developments utilizing belt air 

at the time the S–MINER Act is enacted would be able to continue 


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doing so for a limited period of time to avoid production shutdowns 

and job losses, but thereafter the practice would only be available 

under the conditions set forth in the reported bill. 

(e) Pre-Shift Review of Mine Conditions.—Pre-shift examinations 

are a critical element in ensuring the safety of underground coal 

mines and are required by section 303(d) of the FMSHA. The information collected during these important examinations, however, 

serves no protective purpose if the information is not conveyed 

promptly to the workers about to enter the mine. The law currently 

provides only that: ‘‘Upon completing his examination, such mine 

examiner shall report the results of his examination to a person 

designated by the operator to receive such reports at a designation 

station on the surface of each mine before other persons enter the 

underground areas of such mine to work in such shift.’’ To ensure 

critical information is actually conveyed to the incoming shift, the 

bill would add a requirement to the law to require oral communications between those inspecting a mine prior to a work shift and 

those beginning the next shift. 

The introduced bill would have provided for a differently structured mechanism to ensure information was conveyed. The Committee decided to modify the bill following receipt of technical recommendations from the Department of Labor, industry and miner 

representatives. 

(f) Atmospheric Monitoring Systems.—As evidenced by the 2006 

tragedies, fire and excess methane pose significant dangers to underground miners. While local codes require most homeowners 

today to have detectors in their homes to detect smoke and toxic 

fumes, and while such devices have been well tested in mines, detectors are not required except in those cases when the mine operator is using belt air. This poses an unjustified risk to the miners. 

It also means that rescuers do not have the information they need 

to assess underground conditions once an incident occurs, potentially halting rescue until cruder measurements at the mine mouth 

reveal it is safe to proceed—as was, for example, the case at Sago. 

Accordingly, the bill requires that, no later than May 1, 2008, an 

operator of an underground mine must install atmospheric detection and warning systems in all underground areas where miners 

normally work and travel. These systems must provide real-time 

information on carbon monoxide levels and that can, to the maximum extent possible, withstand explosions and fires. 

The introduced bill would have required that atmospheric detection and warning systems capable of monitoring other gases—in 

particular, methane levels, oxygen levels, air flow, smoke and temperature—also be installed. The Committee has been advised that 

the instrumentation for these other systems is not yet reliable and 

could lead to false alarms, which in turn might lead miners and 

mine operators to ignore real alarms. The Committee notes that 

further developments of such monitoring systems will be a priority 

for NIOSH under subsection (m) of this section and would strongly 

encourage MSHA to require the implementation of these systems 

as soon as NIOSH certifies their reliability. 

(g) Methane Monitors.—Miners die if they do not know that they 

are exposed to hazardous gases. It is possible that the explosion at 

the Darby mine took place because a miner was unaware that the 

area in which he was using a torch was saturated with methane 


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gas due to a leak in a nearby seal. Similarly, many miners involved 

in the 2006 tragedies were uncertain whether they needed to don 

and keep on their self-rescuers to avoid poisoning by carbon monoxide gas. A similar risk can occur in areas of the mine in which 

oxygen levels are too low. 

MSHA’s emergency response rule of December 8, 2006 provides 

that mine operators ‘‘provide an MSHA-approved, handheld, multigas detector that can measure methane, oxygen, and carbon monoxide to each group of underground miners, and (also) to each person who works alone, such as pumpers, examiners and outby miners.’’ (30 CFR 75.1714–7) In practice, however, this protection is 

not complete. For example, if a group of miners gets one meter, and 

one or more of the miners must split away from the group (as is 

often the case) to perform work in nearby areas that may have very 

different atmospheric conditions, a choice has to be made as to 

which miner(s) has the meter. Accordingly, the bill would expand 

upon MSHA’s regulatory action to ensure that, as a matter of law, 

such multi-gas detectors are supplied to ‘‘each miner who is working alone for part of a shift.’’ The reported bill uses the words ‘‘is 

working alone’’, instead of the words ‘‘may be working alone’’ that 

were in the original bill, based on technical advice from MSHA that 

this clarification would facilitate enforcement. 

(h) Lightning.—Various explanations have been advanced as to 

the ignition source which set off the spark that ultimately led to 

the horrible tragedy at the Sago mine. MSHA’s accident report, 

based on studies by Sandia laboratories, asserts that a lightning 

pulse above the location of the underground mine created an electrical charge in a cable in an abandoned area of the mine, and that 

this charge was enough to set off the explosive concentration of 

methane present in that area. There have been many documented 

examples of lightning touching off an underground mine explosion 

by, for example, striking a metal conduit pipe extended to the surface; for this reason, mines are required to install lightning arrestors. If lightning can set off underground explosions in the manner 

suggested by MSHA’s accident report, however, then the existing 

protections are inadequate. While removing cabling in sealed areas 

and more carefully enforcing requirements that metal connections 

between abandoned and working areas be severed, more may need 

to be done to ensure that miners who are working underground 

during lightning storms are either protected or withdrawn. 

The introduced bill this year provided that, until further research 

could ensure miners of protection against such threats, they should 

be withdrawn from a mine during a lightning storm. However, representatives of both miners and the industry assured the Committee that withdrawal from many mines was impractical (due to 

the size of the mine and time needed for egress) and posed safety 

dangers of its own, especially if it meant the miners would be 

brought outside during the storm. Accordingly, this provision was 

stricken from the bill reported out by the Committee. 

The bill continues to provide that, no later than one year after 

the date of enactment of this title, the National Academy of 

Sciences shall issue recommendations to the Secretary of Labor, 

with a copy to Congress, on actions that need to be taken to 

strengthen existing requirements in the law or regulations to ensure that miners are protected from potential damage that could be 


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generated because of lightning strikes near a mine by adopting any 

existing technology to the mining environment, and on research 

needed for improved technology. 

(i) Roof and Rib Support, Barrier Reduction and Pillar Extraction, Special Attention to Deep Mining.—This subsection was not in 

the introduced bill, but was added following the accident at the 

Crandall Canyon mine in Utah in which 6 miners were trapped 

and killed along with 3 rescuers. The Committee is continuing its 

own investigation of this accident, but much is already clear. 

As underground coal mine operators run out of resources they 

can readily extract from their properties, they have used every 

available method to extract more. Where it can be used, longwall 

mining equipment permits coal extraction without the need to 

leave pillars of coal in place to hold up the roof, and the equipment 

is designed to protect miners from harm. Retreat mining is another 

way to get extra coal. It involves the extraction of the coal pillars 

originally left in place to hold up the roof, and it must be performed under a plan specifically designed for the situation in a particular mine so miners will not be hurt as the roof collapses. Sometimes retreat mining also involves reduction of giant ‘‘barriers’’ of 

coal left in place to hold up roofs under high mountains. 

The Crandall Canyon accident exposed once again the risky nature of retreat mining and the poor oversight of retreat mining 

plans by MSHA. The Committee regards the accident as yet another symptom of the inadequacies inherent in the system the Congress put in place several decades ago to protect mine workers from 

harm while on the job. 

This subsection of the bill would: 

• Require MSHA to more closely review retreat mining plans by 

bringing computer simulations and experts to bear; and including 

an extra layer of review before approving plans for deep mines. • Require MSHA to observe retreat mining operations when they 

begin to ensure they are being performed in accordance with the 

plans and that miners are properly trained. 

• Require a through study of ground control science and technology. 

Existing section 302 of the FMSHA is entitled ‘‘Roof Support’’ but 

actually deals with the ribs as well. Moreover the Committee understands it is in the ‘‘roof support’’ plan that the operator sets 

forth its retreat mining plans (reducing the size of coal barriers 

and the extraction of coal pillars). Accordingly, Section 4(i)(1) of the 

reported bill re-titles and expands this section to cover roof and rib 

support, barrier reduction and pillar extraction, with special attention to deep mining. 

Section 302(a) of the FMSHA is amended by requiring the Secretary to establish by regulation the appropriate use of roof screen 

in certain areas of the mine—belt entries, travelroads, and designated intake and return escapeways. Roof screen is an established practice in many mines to ensure that heavy chunks of rock 

do not fall on miners while working in the area. According to data 

supplied to the Committee, between 1995 and 2001 an average of 

nearly 650 reported injuries per year resulted from roof material 

falling from between the roof bolts, injuries that could have been 

avoided had screening been installed to prevent the loose material 

from falling. At the same time, the Committee recognizes that 


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there may be some circumstances where the use of roof screen is 

inappropriate; hence, the bill is clear that the Secretary has appropriate discretion to issue a regulation that will not require the use 

of roof screen in inappropriate circumstances even in the specific 

areas identified by the bill. The Secretary has the authority, of 

course, to require roof screening in areas not specifically referenced 

in the reported bill. 

New subsection 302(g) of the FMSHA specifies some minimum 

requirements for the roof screening where it is to be used. The 

Committee understands that NIOSH has determined these are appropriate requirements based on years of examining the topic. 

These are minimum requirements and do not preclude the Secretary, following rulemaking, from determining that additional requirements need to be imposed in some or all circumstances. 

New subsection 302(h) requires an operator to have a current 

and approved plan for barrier reduction, pillar extraction or both 

before performing such activities. Paragraph (1) requires that 

MSHA shall only approve the plan if it minimizes the risks to miners and complies with any requirements that may be specifically 

adopted by the Secretary. 

In determining whether the plan minimizes the risks to miners, 

the Secretary is to consider appropriate engineering analysis, computer simulations, and consultations with experts in various agencies. While the Committee is still investigating what actually led 

to the accident at the Crandall Canyon mine, public statements 

and analyses so far by MSHA, the Bureau of Mines, NIOSH and 

various academic experts strongly indicate that the potential problem in the retreat mining plan might well have been detected had 

appropriate analysis been done. The Committee further believes 

that a key to better analysis is to ensure that available Government expertise in several agencies is consulted on individual plans. 

The Committee expects that as analysis of the Crandall Canyon 

mine tragedy continues, and related studies are completed, the Secretary may want to adopt specific requirements for barrier and pillar extraction plans for certain types of mining situations. The bill 

indicates that these requirements may relate to the depth of the 

mine, geology of the mine, mine height and methods, and emergency response capabilities, but this list is only suggestive and will 

serve as a reminder for the Secretary, the Committee, those performing studies, and the mining community in general as to some 

of the factors that should be explored. 

Paragraph (2) of new subsection 302(h) requires a copy of the 

plan to be provided to the authorized representative of miners in 

advance of submittal to the Secretary, provides an opportunity for 

comment, and requires the Secretary to respond to any such comments. The normal process for plan approvals does not include such 

a requirement, and it is being added here in order to ensure that 

those most closely impacted by the decision have some opportunity 

to bring to the attention of the Secretary information that could 

significantly impact the analyses performed—e.g., a history of unreported mountain bumps, or instructions from a mine operator to 

ignore particular safeguards. 

Paragraph (3) of new subsection 302(h) requires the Secretary to 

establish a special internal review process before approving a barrier reduction or pillar extraction plan for depths below 1500 feet 


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and in mines with a history of mountain bumps. The reported bill 

provides the Secretary discretion on the details of this process, but 

the Committee expects that it will involve a higher level of signoff 

within MSHA, perhaps a signoff from appropriate officials at 

NIOSH and perhaps some independent peer review of the plan by 

qualified academic or other independent experts familiar with mining at such depths or under such conditions. 

While the provisions discussed so far focus on ensuring that the 

mine operator’s plan for barrier reduction and/or pillar extraction 

is sound, the provisions of new subsection 302(i) focus on ensuring 

that the plan is properly implemented. The bill would require that 

the operator give MSHA a week’s notice before actually beginning 

retreat mining, or resuming it after a hiatus, so that the Secretary 

can ensure the miners are properly trained and that the operator 

is complying with the terms of the plan. The Committee does not 

intend that suspension of activities for a day would normally require a new notification in this regard; rather, the Committee expects the Secretary to determine when notification is required after 

a suspension of retreat operations so as to fulfill the goals of the 

subsection. 

Miner training for such activities is particularly important because pulling the wrong pillar or not understanding how to extract 

a pillar safely can result in death or serious injury. The Committee 

is particularly concerned that language barriers may be a problem 

in some mines. In requiring the Secretary to confirm the training 

of the miners in this regard, the Committee is following the lead 

of the State of Kentucky which earlier this year imposed a similar 

requirement on retreat mining in that state. 

The reported bill requires that the Secretary actually observe the 

barrier reduction or pillar extraction operations for ‘‘a sufficient period of time to ensure that the mine operator is fully complying’’ with the plan. While this imposes resource requirements on the 

agency, the Committee believes this focused use of the agency’s resources is a sound investment in catching problems before they 

occur. The nature of these operations is potentially risky, and the 

agency’s presence on site to observe plan implementation will contribute to better plans and fewer implementation problems. 

Section 4(i)(2) of the reported bill requires the National Academy 

of Sciences, in consultation with NIOSH, to submit recommendations to the Congress within a year of enactment of the S-MINER 

Act on how to better deal with ground control hazards, including 

barrier reduction and pillar extraction issues. The recommendations are to include particular focus on whether existing technologies can be adopted to provide miners with better protection 

during these operations, on future research needed, on improving 

safety in deep mining operations, and on improving safety during 

secondary mining of coal resources at any depth. As discussed 

above, the most available coal resources have already been extracted, and the Committee believes that in going after what is left 

that, the country may need to revise the technologies and approaches it has used with success in extracting the more readily 

available resources. The Committee hopes that additional research 

along the same lines at various universities will be funded by Congress, but believes that a National Academy of Sciences study in 

consultation with NIOSH is also important. 


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(j) SCSR Inspection Program.—Initial reports on the tragedies in 

2006 raised a number of questions about the reliability of the selfcontained self-rescuers (SCSRs) maintained by some miner operators. As with other aspects of the law, it is the obligation of mine 

operators to ensure that their SCSRs are properly maintained— see, generally, 30 CFR 7514–3. MSHA’s emergency evacuation rule 

of December 8, 2006, added additional requirements in this regard; 

specifically, that mine operators regularly inventory their SCSR 

supplies, file those lists with MSHA and notify the agency promptly of any defect, malfunction or performance problem with any unit 

in its inventory. 30 CFR 75.7514–8 

However, as important as it is to make mine operators responsible for such actions, the Government also has a responsibility for 

ensuring these devices are, in fact, operative. At the present time, 

NIOSH conducts a random survey of all SCSR units in service in 

mines. While that agency has taken steps this year to address 

identified deficiencies in its program, NIOSH has no power to actually select and remove specific SCSRs from service for testing. 

Rather, it depends upon operator voluntary compliance, and it is 

therefore likely that some operators will decline to submit units for 

testing that may demonstrate noncompliance with the law’s requirements. MSHA has the authority to make such requests and 

ensure that the units selected for testing are indeed the units it 

wants; but it has declined to do so. The bill would correct this situation and mandate that MSHA make the requests for the units 

that require testing. Once the units are obtained, NIOSH will perform the actual testing. 

As introduced, the bill would have required MSHA to pull 5% of 

SCSRs in mine inventories every 6 months and would have required mine operators to replace these units. Based upon information supplied by MSHA, NIOSH, the mining industry and miner 

representatives, the reported Committee bill takes a more modest 

approach. The reported bill leaves it up to NIOSH to determine the 

specific units and number of units it will sample and requires 

NIOSH to replace the units pulled for sampling. NIOSH has advised the Committee that it has revised its sampling survey to ensure that it will pull a random sample capable of detecting problems, and that it has the resources to replace the units drawn for 

this purpose. However the bill further authorizes MSHA to pull additional units for testing should NIOSH request them based upon 

the initial sample, and in this case it shall be the obligation of 

mine operators to replace the additional units. 

(k) Application to Underground Metal and Nonmetal Mines.—The 

MINER Act was an explicit response to the tragedies of 2006 and 

select other problems in underground coal mines. Nevertheless, it 

remains a fact that the worst underground tragedy in a U.S. mine 

was at a non-coal mine. While regulations governing operations at 

these mines do have some safeguards to protect miners during an 

emergency, either by escape or refuge, these provisions have not received attention in many years. 

As introduced, the S–MINER Act required the Secretary to establish an advisory committee to look into the problem and set a 

deadline for the advisory committee to make recommendations to 

the Secretary and the Congress in this regard. This provision remains in the reported version as paragraph (c) of a new section 206 


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85 Harry C. Verakis, CFEI, CMSP, Mine Safety and Health Administration, Technical Support 

Directorate, reported at the International Symposium on Fire Investigation Science and Technology, June 25–29, 2006, University of Cincinnati, Ohio, and published in the Proceedings of 

the 2nd International Symposium on Fire Investigations Science and Technology by the National Association of Fire Investigators, 2006, USA. 

of the FMSHA. Such recommendations are to include any action by 

the Congress that could facilitate the goal of providing underground metal and nonmetal miners with the same level of protection as underground coal miners. 

However, the Committee decided to move forward and specifically require underground metal and nonmetal mines to take action 

on two topics where their situation is directly comparable to those 

of underground coal mines. Those two situations are conveyor belts 

and seals in ‘‘gassy’’ mines. 

As discussed in connection with section 4(d)(1) of the bill, the bill 

would require underground coal mine operators to switch to a new 

generation of conveyor belt fabric that is much more flame resistant and can also reduce the generation of smoke and toxic gases 

should a belt catch fire. Underground metal and nonmetal mines 

use belts extensively as well. While these belts do carry coal, hence 

reducing the threat of fire starting or spreading because of coal 

dust, they too can catch fire from malfunctioning equipment. For 

example, just last year, agency staff reported the following incident: 

A fire involving a conveyor belt occurred in an underground 

salt mine. Fortunately, there were no injuries from the fire. 

The fire occurred as a result of a misaligned conveyor belt rubbing against a steel beam of the conveyor structure. The misaligned conveyor belt caused a jam at the take-up pulley. The 

fire burned approximately 30.5 meters (100 feet) of conveyor 

belt, but the fire also spread to a transfer conveyor belt. Eightfive meters (280 feet) of the transfer conveyor belt was consumed by the fire. As part of MSHA’s investigation, an examination was made of a segment of the misaligned belt recovered 

from the fire to determine if the belt was under load and tore 

apart. By visual examination, the tears in the partially burned 

edge of the segment indicated the belt was under load and 

burning occurred near the center and the belt tore apart from 

the center toward the edges. This explanation was confirmed 

by microscopic examination of a section of the segment; unburned strands of the ply material broken from tension were 

observed . . . ’’ 85

Accordingly, new subsection 206(a) of the FMSHA, established by 

the reported bill, would require that belts in this sector be replaced 

with the newer fabric on the same schedule as belts in underground coal mines. The fact that the mandate of the Technical Review Panel established by the MINER Act did not authorize that 

panel to make recommendations beyond the coal sector, is not a 

reason to overlook the problem. 

As discussed in detail in connection with section 4(c)(1) of the 

bill, walls used to seal off areas of an underground coal mine that 

are not regularly ventilated need to be strong enough to withstand 

explosions. This is because methane is present in underground coal 

mines, and despite efforts to minimize possible ignition sources, 

anything missed can set off a major explosion. The Committee has 


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determined that exactly the same situation is present in some 

types of underground metal and nonmetal mines—those which naturally emit methane gas. These mines use seals in the same manner as underground coal mines. Accordingly, new subsection 206(b) 

of the FMSHA, established by the reported bill would apply the 

same rules to seals in these mines as in underground coal mines. 

This includes the approval of plans for the design, construction, 

inspection, maintenance and monitoring of seals, and the requirement that the Secretary inspect all seals after construction on the 

date of enactment to ensure compliance with the approved seal 

plan. While it has not been MSHA’s practice to require the underground metal and nonmetal sector to obtain pre-approved plans for 

a particular operation, as it does in the underground coal sector, 

this tradition is not a matter of law. Pre-approval of seal plans is 

vital to ensure that these critical mine structures perform correctly. 

The date on which these rules become effective in this sector is 

not necessarily the same date on which they become effective in the 

underground coal sector. Underground metal and nonmetal mines 

are not currently subject to the emergency temporary requirements 

applicable since May of 2007 to seals in underground coal mines. 

For that same reason, the existing protections (of the emergency 

temporary standard) do not become ineffective to the metal and 

nonmetal sector after February 21, 2008 as they do in the coal sector (after the 9 months for which an emergency temporary standard can be effective). Nothing in the law nor reported bill compel 

MSHA to make these requirements effective to metal and nonmetal 

mines by that time. The only time requirement in the bill that will 

impact this sector is that concerning the type of monitoring that 

must be used if a mine in this sector elects to monitor a seal rather 

than build one meeting the 240psi static pressure standard (monitoring must be continuous monitoring if done more than a year 

after the effective date of the S-MINER Act). While this situation 

leaves the agency flexibility in establishing an effective date for 

this sector, the Committee reminds the agency and the industry 

that MSHA has already determined that the risks of failing seals 

in very similar underground coal mines constitute a ‘‘grave danger’’

to miners, and the agency should move expeditiously to eliminate 

an equivalent risk in certain categories of underground metal and 

nonmetal mines. 

(l) Approval Center Priorities.—In order for certain devices to be 

used underground, they must be approved by MSHA as ‘‘intrinsically safe’’—i.e., their components are designed so as not to create 

a risk of igniting explosive gases present in the mine atmosphere. 

There is a considerable backlog at MSHA’s approval center, which 

needs to be addressed with increased resources. This bill would 

simply reinforce that, consistent with existing policy, priority is 

given to the approval of any self-rescue device that permits the replenishment of oxygen without requiring the device user to remove 

the device and to the approval of any communications device that 

would permit mine operators to comply with the requirements of 

the MINER Act for the installation of an underground communication device that provides for communication between underground 

and surface personnel via a wireless two-way medium. These requirements were in the introduced bill and have not been altered. 


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(m) Technology and Mine Emergency Health and Safety Research 

Priorities.—The bill provides that in implementing its research activities in the 5-year period beginning on the date of enactment of 

this Act, NIOSH give due consideration to new technologies and existing technologies that could be adapted for use in underground 

coal or other mines and that could facilitate the survival of miners 

in a mining emergency. The bill specifies some examples of the 

technologies to be given this priority attention. These requirements 

were in the introduced bill and have not been altered. 

The Committee wants to emphasize that as important as these 

priorities are, NIOSH has a broad mandate to protect miners from 

health hazards as well as safety hazards. Because the safety hazards have received the most attention in recent years, the Committee is concerned that NIOSH may not be keeping up its activities in the health area. One example is the failure of NIOSH to 

move forward in recent years with its project to develop new recommended exposure limits reflecting the most recent scientific findings about the hazards of exposure to toxic substances. The Committee expects NIOSH to reinvigorate its health research efforts 

and to advise the Congress promptly if it lacks the funds to do so. 

Sec. 5. Supplementing Enforcement Authority. 

(a) Authority of inspectors.—This subsection would clarify current 

law to ensure that MSHA inspectors can respond properly in the 

event of an accident. The Committee reported bill would amend 

section 103 of the Act to explicitly prevent interference with inspectors during the course of their activities. It would thus ensure that 

operators cannot stall inspectors by putting limits on their ability 

to take photographs or samples, refuse to provide transportation 

into a mine or interfere in the investigation of an accident or other 

incident or during recovery. This amendment would be consistent 

with existing interpretations of the law, but making this prohibition explicit would facilitate compliance. 

(b) Transition to a new generation of inspectors.—The lack of an 

adequate number of inspectors to perform the required number of 

regular inspections of underground coal mines has proved to be a 

persistent problem. It has required MSHA to divert staff from 

other critical duties. Moreover, these inspections may not be as 

thorough as when performed by those who have and keep current 

the required expertise. While MSHA has considerably expanded its 

hiring efforts since the MINER Act was passed, it is barely able to 

keep up with the retirement rate, let alone add new inspectors. In 

addition, training new inspectors takes 18 months even with compressed classroom time. 

Accordingly, subsection (b) takes several steps to slow the loss of 

senior experienced personnel while the agency is building up its 

supply of new inspectors. The bill would require MSHA to establish 

a Master Inspection program, to lift the personnel ceilings for five 

years so that new and existing personnel could work together for 

these periods if resources to do so are adequate and permit retired 

inspectors to perform such services for MSHA under contract for 

five years without loss of retirement pay. Annual reports to the 

Congress would be required during the five-years that these special 

waivers are in effect to ensure that they are being properly managed. 


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(c) Office Of Miner Ombudsman.—The bill would establish a new 

position within the Office of the Inspector General at the Department of Labor to protect miner rights, and particularly to ensure 

the integrity of the complaint process. The Ombudsman would receive all complaints of operator violations that come to the Department and ensure the confidentiality of those making these reports. 

The Ombudsman would use this information to ensure that complaints are being timely and properly addressed and would be 

given specific authority to this end. He or she would also enjoy 

whatever general authorities are already available to the Office of 

the Inspector General. The Ombudsman would also monitor the 

agency’s compliance with the anti-retaliatory requirements of the 

Miner Act of 2006. 

The Ombudsman position would be filled by a Presidential appointee with expertise in mine safety and health. This appointee 

would be authorized to hire necessary staff in accordance with 

money appropriated by Congress. 

The Committee-reported bill contains a number of modifications 

to the bill that was introduced in light of comments from the Office 

of the Inspector General. In addition, at the suggestion of Committee members, a provision was added to ensure that the Ombudsman make available laminated cards and other similar memory aides that miners and their families could keep at home with 

appropriate contact information. 

(d) Pattern of Violations.—The FMSHA provided MSHA with the 

authority to cite mine operators for a pattern of violations and impose significant penalties in connection therewith. While MSHA 

has threatened to use this authority on several occasions, the Committee understands it may never actually issue such a citation, and 

certainly has not done so in recent years. The Agency has recently 

indicated its intention to establish objective criteria to identify 

mines which may have a pattern of violations; such criteria may 

help it defend decisions to issue citations under this provision 

should it ever do so. 

The bill would make it easier for MSHA to use this authority by 

consolidating the chain of command required in the existing regulations to take such action. It would also help to ensure that appropriate factors, in particular a violation frequency rate, are used to 

determine whether to issue a significant citation. This is intended 

to alleviate concerns that such a tool might inappropriately target 

frequently inspected mine operations. 

A significant new penalty would also be authorized when a pattern of violations is found, and miners would have to be withdrawn 

from the entire mine. However, the bill specifically provides that 

the amount actually assessed is based on the overall resources of 

mine operators in order to ensure a change in the their future conduct with respect to mine safety and health In addition, the bill 

provides an additional way for mine operators to get out of a pattern of violations charge when they can provide objective evidence 

of a change in their pattern of conduct. 

(e) Notification of Abatement.—Mining tragedies often result from 

the failure of a mine operator to correct conditions that are known 

to be MSHA violations. This includes violations that have actually 

been identified and cited by MSHA, but not corrected as required. 

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tion it cites has not been timely abated, and it is not able to act 

until it visits the mine again and confirms that there has been a 

‘‘failure to abate.’’ The bill would change this situation. It would require mine operators to affirmatively notify MSHA within the time specified in the 

citation that the violations previously identified and cited by 

MSHA have been timely abated. It would further require that if 

this notice is not timely provided, MSHA is to issue a withdrawal 

order to prohibit miners from entering the affected area until 

MSHA can visit the mine to determine the situation for itself. If 

mine operators need more time to abate violations, there are procedures for obtaining that extra time where it is justified; but the bill 

will help ensure that once these dates are fixed, mine operators 

will take them seriously. 

The reported bill clarifies that, as at present, no violation shall 

be determined to be abated until an authorized representative of 

the Secretary visits the mine site and determines that the violation 

has in fact been fully abated. 

(f) Failure to Timely Pay Penalty Assessments.—Last year, the 

Congress reviewed reports concerning the difficulties MSHA faces 

when it tries to obtain payment of fines (which are the subject of 

final orders under the Act) from some scofflaw mine operators. The 

amounts involved tend to be too small for Treasury Department to 

expend resources collecting. Moreover, the mine operator cited may 

not in fact be the responsible financial entity. MSHA indicated its 

intent to seek relief by trying a new tool—court orders under section 108 of the ‘‘Mine Act’’ to require scofflaw operators to post 

bonds to cover potential violations as a condition of continued operation. Section 9 of the MINER Act added a change to section 108 

of the Act to facilitate such efforts, and we understand MSHA has 

since had some success. The bill would make it easier to address 

this problem by authorizing the Secretary to halt production at a 

mine that does not pay its outstanding obligations. 

In addition, the bill would require an operator who wishes to contest a citation or proposed penalty assessment to place in escrow 

the amount of the proposed assessment. The money would be 

placed into an interest bearing account with any balance, plus accrued interest, returned to the operator after payment. This escrow 

requirement serves as a backup to the other approach (halt in production) being taken by the reported bill to deal with the problem 

of delinquent operators. 

(g) Maximum and Minimum Penalties.—While penalty caps established by the ‘‘Mine Act’’ have been increased over the years as 

a result of the Inflation Adjustment Act, they have not been high 

enough to provide a serious incentive for compliance when mining 

profits are high, and many mine operators just regard these penalties as ‘‘traffic tickets’’ to be paid as a routine cost of doing business. 

The MINER Act responded to this problem by substantially increasing the maximum penalties for certain types of violations—

willful violations of standards and knowingly failing or refusing to 

comply with an abatement, withdrawal or other such order issued 

by MSHA. The MINER Act also added a new category of flagrant 

violations with penalties of up to $220,000, and established minimum penalties for imminent danger violations ($2,000 for the ocVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00069 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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currence, and $4,000 for a failure to comply with an associated 

withdrawal order). 

The bill would supplement the approach taken by the MINER 

Act and apply it to other types of violations. The law currently provides a cap of $50,000 on penalties for violations of provisions of 

the Act or a standard and has no minimum. The bill would raise 

the cap to $100,000 and establish a minimum penalty of $500. 

However, should a violation ultimately be determined to be a ‘‘significant and substantial’’ violation (i.e., it could significantly and 

substantially contribute to the cause and effect of a coal or other 

mine health or safety hazard), the cap would be $150,000 and the 

minimum, $100. 

(h) Factors in Assessing Penalties.—Over the last year, the National Mining Association has stated on more than one occasion 

that if a mine operator is not prepared to look after the safety and 

health of the miners, that operator should not be allowed to continue in business. This widely endorsed view, however, is contradicted by a provision of the existing law that in assessing penalties 

against a mine operator for violations, the ‘‘effect upon the operator’s ability to continue in business’’ needs to be considered. The 

bill would strike this requirement of the law. 

The bill would not alter the requirement of the existing law that 

operator size be taken into account in assessing penalties. However, the bill would clarify the current law to provide that in such 

instances, the Secretary look at the combined size of the operator 

and any controlling entity. The purpose of this change is to ensure 

that very large and profitable corporations do not have their penalties reduced simply because they conduct their mining operators 

through limited size production units each of which is registered as 

a ‘‘mine operator’’ under the Act. 

Finally, the bill would take account of an anomaly pointed out 

by the Government Accountability Office in a report released May 

16, 2007. For some years, MSHA has utilized a complex point system to ensure that in recommending penalty assessments, decisions are made in a consistent manner. In fact, the agency updated 

that system this year to ensure, among other things, that proposed 

assessments give more weight to the gravity of the violation involved. According to the GAO, however, similar practices are not 

observed in the process of settling cases. Further, the Mine Safety 

and Health Review Commission, which is ultimately responsible for 

final penalty assessments under the Act, does not utilize this practice, and the judges who work for the commission often provide 

very little information about the basis upon which the final assessments are determined. To ensure consistency in penalty practices 

and to ensure appropriate weight is being given to the gravity of 

violations, the bill requires the point system used by the Secretary 

shall also be used in settlements and in determinations by the 

Commission. 

(i) Civil Penalty for Interference or Discrimination.—The bill 

would increase the penalties for those who retaliate against miners 

who report safety and health violations. Such violations are particularly onerous, because they discourage miners from reporting 

problems, which could result in a tragedy. Testimony by miners, 

survivors and their representatives pointed out that such discouragement is widespread in mining communities dependent upon the 


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industry for good jobs. The bill takes a first step toward addressing 

these problems by establishing a minimum penalty of $10,000 and 

a maximum of $100,000 for such violations. 

The bill would also provide that the same minimum and maximum penalties be applied to violations of the new requirement established by section 5(a) of the bill, which prohibits interference 

with mine inspectors in the performance of their duties. 

(j) Withdrawal order.—The purpose of the emergency response 

plans established pursuant to the MINER Act was to strengthen 

the ability of all concerned to limit the causes of mine disasters and 

to improve the survival chances of miners should they occur. The 

same is true of the requirements that this bill would add to those 

plans. Accordingly, the reported bill provides that should an authorized representative of the Secretary determine that a mine operator has failed to fulfill any of the relevant requirements of sections 315 or 316 of the FMSHA the inspector is to determine the 

area of the mine at risk and issue an order requiring the withdrawal of miners from the area. The reported bill maintains the 

concept of the original bill, but based on technical comments from 

the agency, has altered the language to avoid confusion. 

(k) Clarifications of Intent in the 1977 Act.—As with any statute 

that is 30 years old, the FMSHA has a few well-recognized technical deficiencies. This subsection of the bill would correct them. 

Paragraph (k)(1) would amend the definition of ‘‘operator’’ in section 3 of the FMSHA. The primary focus of the amendment is to 

deal with a problem involving independent contractors who actually perform production operations for other entities at a particular 

mine. Mining companies often contract with separate business entities to conduct mine operations at specific locations, and sometimes 

these entities are formed just for the exclusive purpose of that contract. The amendment would ensure that should such an independent contractor go out of business without paying assessed penalties, or otherwise fail to comply with the law, the contracting 

party may be held jointly and severally liable with the independent 

contractor for the violations of the Act including the responsibility 

for the payment of fines under the Act. Since this section is being 

amended, the bill also makes a few small changes to codify longstanding interpretations of the Act. 

Paragraph (k)(2) would amend section 103(b) of the FMSHA to 

provide the Secretary with broad subpoena authority, equivalent to 

that under the Occupational Safety and Health Act and many other 

government statutes. Currently, subpoena authority is only available in connection with public hearings held in the course of accident investigations. However, wider subpoena power is necessary 

for the Secretary to conduct a broad range of activities, for example: 

• determine which business entities may be mine operators 

or controllers of a mine for enforcement purposes (both penalty 

size and who has to pay); currently this is based largely on 

self-reporting; 

• obtain testimony or records from 3rd parties (e.g., foremen, 

miners, contractors, other witnesses) against whom no injunction can be obtained under section 108 concerning whistleblowing, accident investigations or other matters; and 


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• obtain testimony or records from operators without the 

need to seek injunctive relief under section 108. 

Paragraph (k)(2) would also clarify that data and items of physical evidence are among the types of ‘‘information’’ that can be subpoenaed. The bill would make a conforming amendment to section 

103(h) of the FMSHA to ensure that operators are required to provide the types of ‘‘information’’ that may be requested by subpoena. 

Based upon a technical suggestion from the agency, the language 

in the reported bill has been slightly adjusted from that in the 

original bill to ensure clarity. The Committee notes that MSHA 

supports this provision of the legislation. 

Paragraph (k)(3) would amend section 104 of the FMSHA to clarify that a violation of a specific provision of the Act itself can be 

deemed a ‘‘significant and substantial’’ violation. This is already 

the case with violation of a standard issued pursuant to the Act. 

This determination is required before a violation can become the 

basis for the more serious sanctions available under these sections. 

There are many critical provisions protecting miner health and 

safety that are specified directly in the Act—for example, the prohibition against interference with inspections and the requirement of 

advance notice of an inspection, may represent significant and substantial violations of the Mine Act. These should be among those 

violations which can form the basis of the enhanced enforcement 

under section 104(d) and 104(e) of the Mine Act. The current language of the Act language is vague and has led to a narrower interpretation of ‘‘significant and substantial violations’’ than is appropriate for the protection of miners (e.g., Cypress Emerald Resources 

v. FMSHRC, 195 F.3d 42 (1999)). By clarifying the Mine Act in this 

regard, litigation on this point will be curtailed. 

The bill would further amend section 104 to eliminate a drafting 

error in the 1977 Act. The current language seems to suggest to 

some that a 104(d)(1) sanction cannot be imposed when there is an 

imminent danger. This would mean that the most grave hazards 

constituting imminent dangers could not lead to the commencement of enhanced enforcement under section 104(d) and 104(E). 

This was never intended to be the case. Eliminating this error 

would ensure that others do not misread this provision. 

Paragraph (k)(4) would eliminate some verbiage from section 

105(a) that has recently been the basis of inappropriate challenges 

by some mine operators to MSHA penalties. It was never the intent 

of the Mine Act to void citations or penalties if MSHA requires additional time to issue them. Eliminating a reference to ‘‘reasonable 

time’’ will ensure others do not misread this provision of the Act. 

This section would also make three changes in section 105(c), the 

provisions of the statute which protect whistleblowers in this industry from retaliation. First, to eliminate any doubt, it would ensure that reporting an ‘‘injury or illness’’ is as protected as reporting ‘‘an alleged danger or safety or health violation.’’ Second, it 

would clarify the rule for determining when a miner can refuse to 

work due to fear of danger to that miner or other miners, by adopting language that has been used for some time in a labor-management contract applicable to much of the industry. And finally, the 

bill would ensure that resolution of anti-retaliation cases before the 

Department not be stayed pending resolution of any related grievance proceeding. 


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86See Hearing before the House Education and Labor Committee, ‘‘The Perspective of the 

Families at Crandall Canyon’’ (October 3, 2007), http://edworkforce.house.gov/hearing/ 

fc100307.shtml; Hearing before the House Education and Labor Committee, ‘‘Protecting the 

Health and Safety of America’s Mine Workers, (March 28, 2007), http://edworkforce.house.gov/ 

hearings/fc-3-2807. 

The Committee heard miners, survivors and those who represent 

them express considerable reluctance about bringing safety and 

health concerns to the attention of mine operators or MSHA because they fear retaliation. 86

This section of the bill would also address two issues involving 

attorneys, by adding two sentences to current law. The first sentence would clarify that MSHA counsel would not face disbarment 

for directly contacting certain individuals in the course of performing their duties. This is the standard rule for Federal counsel 

under 2002 model rules of the American Bar Association, but not 

all states have adopted this yet, and the potential for disbarment 

can significantly interfere with investigation and enforcement activities. The second sentence would establish a firm conflict of interest rule that would bar attorneys who represent mine operators 

in a matter from simultaneously representing individual miners in 

the same matter. While the inherent conflict of interest seems 

clear, this practice is widespread in the industry and greatly complicates accident investigations in particular. 

Paragraph (k)(5) would amend section 110 of the Act to address 

a technical error that was introduced to the text by the 2006 

MINER Act and subsequent technical amendments. These enactments inadvertently placed new authority to issue flagrant provisions in the wrong paragraph of the Mine Act. As a result, questions have been raised about whether flagrant violations can be 

issued in other than failure to abate cases. MSHA has correctly interpreted the intent of the Congress in this regard (see 72 FR 

13623). Nevertheless, to avoid protracted litigation on the point, 

this technical amendment moves the provision to the correct paragraph of the Mine Act. 

This section would also clarify that the liability of directors, officers and agents for violations of the Mine Act does not change because of the form of the mine operator’s business. In recent years, 

many mines have become limited liability corporations rather than 

‘‘corporations’’, but the language of the Mine Act was drafted in another era and refers only to ‘‘corporate’’ directors, officers and 

agents. The amendment is consistent with MSHA’s interpretation 

of the Act (71 FR 38902–38905) and would ensure that such officials retain the liability they have always had under the Mine Act 

even should their enterprise change form. The amendment also 

clarifies that violations of the requirements of the Act itself can be 

the basis of such liabilities, not just violations of standards, and 

further clarifies that partners and owners are also covered. 

(l) Federal Licensing.—This section requires the appointment of 

an advisory committee to study whether the law should be amended to provide for Federal licensing of mines, mine operators, mine 

controllers or various mine personnel in order to ensure that those 

engaged in mining activities are not frequent violators of safety 

and health requirements. Some states have licensing provisions for 

certain mine specialists, for example, and revoke such licenses 

should the individuals involved be found responsible for violations. 


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The bill requires that the advisory committee conduct a review of 

existing state requirements in this regard and their effectiveness, 

and provide its recommendations to Congress within 2 years. Based 

on suggestions from the mining industry, the reported bill also 

charges the advisory committee to conduct a review of state registries and determine whether a national registry can be established in connection with any Federal licensing requirements. 

Sec. 6. Supplementing Rescue, Recovery and Incident Investigation Authority. 

The provisions of this section expand upon the work initiated by 

the MINER Act to improve the ability of the Nation to respond to 

mine emergencies. Under the MINER Act, for example, mine operators must notify MSHA within 15 minutes of the time the operator 

realizes that the there has been a death, injury or entrapment that 

has a reasonable potential to cause death. Moreover, the MINER 

Act establishes new requirements for rescue teams at mines of different sizes. 

(a) Emergency Call Center.—The bill would require that MSHA 

promptly establish a central communications emergency call center 

for mine operations, staffed and operated 24 hours per day, 7 days 

per week by MSHA employees with adequate experience and training to handle emergency mine situations. A single national phone 

number shall be provided for this purpose, and the Secretary shall 

ensure that all miners and mine operators are issued laminated 

cards with emergency call center information. 

(b) Contact Information.—The bill would require that the Emergency Call Center be provided with current contact information for 

all those who may need to be reached during an emergency. At the 

suggestion of the mining industry, the reported bill requires the 

Secretary to consider including the information currently collected 

by the joint government-industry Mine Emergency Operations 

database. 

(c) Mine Locations; Repository of Mining Maps.—Paragraph (1) of 

this subsection would require that MSHA’s website contain the geographic coordinates of all U.S. mines and mine impoundments, including abandoned mines, as determined by a global positioning 

system. The primary purpose of this requirement is so emergency 

responders can quickly locate all mines, but the reported version of 

this provision also ensures that the map provides the geographic location of mine waste impoundments, with links to associated emergency contact information and available emergency response plans; 

currently, this information is maintained only through Federal 

funding of a project at a university. 

Paragraph (2) deals with a separate problem brought to the attention of the Committee by representatives of the mining industry 

during discussions about the original bill—the need to preserve old 

mine maps. The term ‘‘mine map’’ does not refer to where the mine 

entry (or entries) is located; rather, it refers to the map of the 

workings of an underground mine, showing in great detail the extent of the passageways and their condition at the time the map 

was created. These maps are constantly changing as the mine advances or retreats, and mine operators are required to have maps 

regularly approved by MSHA and retained at the mine site. The 

fact that the most current map was not immediately available to 

rescuers at the site of the Aracoma Alma mine when they arrived 


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was the subject of significant attention in MSHA’s investigation report. 

Mine maps are also important long after mining is completed. At 

the Quecreek mine inundation in Pennsylvania, one mine flooded 

because the miners inadvertently dug into a flooded tunnel of a 

long abandoned mine. Had the map of the old mine been readily 

available, the problem could have been avoided. The Department of 

the Interior has been given some authority to collect old mine maps 

and digitalize them, but the Committee believes that MSHA should 

also have a role in this activity. 

Accordingly, the reported bill authorizes the Secretary of Labor 

to obtain copies of historic mine maps and create a repository for 

them. The Secretary has the discretion to coordinate with the Secretary of the Interior in this regard. Further, to facilitate emergency rescue, the bill would provide for the repository to include 

currently approved mine maps, mine emergency response plans, 

roof plans, ventilation plans, and other required plans following approval so these plans can be accessed in the case of an emergency 

by those not directly at the mine site or the local area office. A 

mine’s current mine map is treated as confidential property under 

section 312(b) of the Act, and this requirement would be retained 

under the committee bill. 

(d) Required Notification of Emergencies and Serious Incidents.—

Mine operators have long been required under 30 CFR Part 50 to 

record various accidents and incidents at the mine site. The 

MINER Act took this one step further and required that certain 

critical events be reported to MSHA by phone within 15 minutes. 

Pursuant to MSHA rulemaking, this 15 minute notice requirement 

was expanded to include every ‘‘accident,’’ a term defined by the 

rules to include 12 specific events—e.g., an unplanned fire in an 

underground mine not extinguished within 10 minutes of discovery 

or a coal or rock outburst that causes withdrawal of miners or 

which disrupts regular mining activity for more than one hour. 30 

CFR 50.2(h). The Committee bill requires MSHA to be timely notified in a few additional instances—what generally could be referred 

to as ‘‘close calls’’. 

Specifically, the bill would require mine operators to notify 

MSHA within an hour of the time at which the operator realizes 

that any of the following has occurred: 

• a fire not required to be reported more promptly (i.e., within 15 minutes); 

• a sudden change in the mine atmospheric conditions in a 

sealed area; 

• a coal or rock outburst that causes the withdrawal of miners (i.e., regardless of how long the miners were withdrawn); 

or 

• any other event that needs to be examined to determine if 

the working conditions in the mine are safe, as set forth by 

regulations promulgated by the Secretary. 

The original bill has been significantly modified in this regard, 

and the Committee has crafted this provision narrowly to avoid unnecessary calls. At the same time, the events at Crandall Canyon 

have pointed out to the Committee that mine operators are currently not required to timely report events which, if examined, 


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could have avoided a tragedy. The reported bill strikes what the 

Committee believes is an appropriate balance in this regard. 

(e) Enhancing the Capabilities of Mine Rescue Teams.—

Paragraph (1) of this subsection would amend the FMSHA to require MSHA and mine operators to take certain steps to make it 

easier for rescue teams to operate on mine property. These actions 

would implement suggestions from mine rescue team members. 

First, in order to avoid delays and confusion at the entrance to 

mine properties, mine rescue team members, support personnel 

and vehicles would receive uniform credentials ensuring immediate 

access to mine property. 

Second, mine operators would be required to have plans in place 

to ensure coordination with local emergency response personnel 

and also to ensure that such personnel receive adequate training 

in how to provide assistance to mine rescue teams. 

Third, mine operators would be required to facilitate the work of 

mine rescue teams during an emergency by storing necessary 

equipment (not brought on site by the teams) in locations readily 

accessible to mine rescue teams, by providing mine rescue teams 

with a parking and staging area adequate for their needs, and by 

identifying a space appropriate for coordinating emergency communications with the mine rescue team. This provision was modified 

from the original bill to recognize that most mine rescue teams 

carry their equipment with them. 

Finally, mine operators would be responsible for identifying and 

maintaining separate spaces for family members, community members and press to assemble during an emergency so as to facilitate 

communications with these groups while ensuring the efforts of the 

mine rescue teams are not hindered. 

Paragraph (2) of this subsection would require NIOSH to conduct 

research on advanced drilling and special technologies required for 

safety or rescue in mining more than 1,500 feet in depth. The need 

for such equipment was made abundantly clear to the public during the efforts to rescue miners at Crandall Canyon. Since this accident, a number of suggestions have been put forth concerning 

technologies that could be adapted toward this end. The Committee 

has been impressed with the results of the working group of Federal agencies established under the MINER Act to assist NIOSH 

on some of the problems recognized after the Sago disaster, in particular the need for improved electronic communications and tracking systems. Accordingly, the Committee bill would expand the 

mandate of this working group to address the additional rescue 

problems revealed by the Crandall tragedy. 

(f) Emergency Preparedness Plan. 

Subsection (f) of section 6 was added by the Committee following 

testimony on the tragedy at the Crandall Canyon mine. The Governor of Utah and others expressed concern that MSHA was not 

executing a pre-defined emergency response plan during the rescue 

effort, leading to a lack of coordination with state and local responders. In addition, the accident occurred at a time when many 

staff were scattered around the country. Others present at the rescue scene also expressed concern about the challenges posed by the 

location, including difficulties posed by reliance upon cell phones in 

an area with limited coverage. 


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The reported bill requires MSHA to establish and disseminate 

guidelines for rescue operations to address such issues in various 

types of rescue situations. While the Committee recognizes that not 

every problem can be recognized and addressed in advance, emergency preparedness plans are widely relied upon in this country as 

a critical part of emergency planning, and the Committee expects 

mine rescue efforts to proceed much more smoothly once MSHA develops such a plan. The bill requires the Secretary to consult with 

States, rescue teams and other responders in developing guidelines, 

and to update them from time to time based upon experience. Although not explicitly required, the Committee expects the Secretary to use this opportunity to set forth specific guidelines that 

will elucidate how rescues will operate under ‘‘J’’ or ‘‘K’’ orders. The ‘‘J’’ and ‘‘K’’ refer, respectively, to section 103(j) and 103(k) of the 

FMSHA. The former provides MSHA with the authority to take 

over a mine site during a rescue or recovery operation. The latter 

provides MSHA with the authority to approve the actions taken by 

mine operators who are conducting rescue or recovery operations. 

(See the discussion of section 6(g) of the bill, infra, for related discussion.) 

As introduced, the bill would have required mine operators to 

make explicit arrangements for ambulances or other emergency response vehicles and to address the need for medical technicians on 

mine sites. The committee dropped these provisions from the reported bill due to concerns about the details, but encourages the 

Secretary to pay attention to the availability of such personnel in 

developing an emergency preparedness plan for MSHA. 

(g) Authority of Secretary During Rescue Operations. 

Subsection 6(g) of the bill strengthens what are referred to as ‘‘J’’ and ‘‘K’’ orders. As noted supra, these refer to the provisions of section 103(j) and 103(k) of the FMSHA. The former provides MSHA 

with the authority to take over a mine site during a rescue or recovery operation. The latter provides MSHA with the authority to 

approve the actions taken by mine operators who are conducting 

rescue or recovery operations. MSHA has not used the J order in 

many years. As the Assistant Secretary of MSHA recently testified 

before the committee, the agency is concerned that if it takes over 

a mine site, the mine operator might not provide critically needed 

resources or equipment—e.g., miners to dig out rubble from collapsed tunnels, or drill rigs to dig boreholes that can supply air and 

communications to trapped miners. These are activities not performed by mine rescue teams who are specialized experts and volunteer to rescue trapped miners once there is some apparent access 

to their location. 

The bill would amend the provisions of section 103(j) of the 

FMSHA to explicitly require an operator to comply with requests 

of the authorized representative of the Secretary in connection with 

rescue or recovery, and also provides that the failure to do so shall 

constitute an egregious violation of the Act. Under the MINER Act, 

the penalty for an egregious violation is set at $250,000. In addition, the Committee notes that the courts of the United States already have the authority to grant injunctive relief to the Secretary 

should an operator fail to comply with an order of the Secretary, 

pursuant to section 108(a)(1)(A) of the FMSHA, and the Committee 

expects the additional language being added to section 103(j) will 


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enable MSHA to promptly seek and obtain injunctive relief in such 

cases. 

There are many situations in which the K order will continue to 

be the vehicle of choice for managing rescue or recovery operations. 

The normal practice in such cases is for the mine operator, MSHA, 

and in the case of an organized mine, the miner representative, to 

jointly develop and amend a rescue plan, or amendments thereto, 

and obtain MSHA formal approval. 

In order to eliminate the confusion reported during recent rescues, including the kind of confusion reported by McAteer and Associates in the Sago mine rescue, the Committee expects that as 

part of the emergency preparedness plan MSHA is required to prepare under section 6(f) of the S–MINER Act, it will elaborate upon 

how a rescue is to operate under a ‘‘K’’ order approach. 

The bill makes one amendment to the provisions of section 103(k) 

of the FMSHA to strike the requirement that a representative of 

the Secretary actually be present at the mine site in order to issue 

a ‘‘K’’ order. Such orders must often be issued by phone in an emergency, and while this practice is widely accepted, clarifying the Act 

ensures that MSHA’s authority in emergencies will not be challenged by uncooperative mine operators, delaying rescue. 

(h) Rescue Communications—The Committee was extremely concerned that during the Crandall Canyon rescue—slightly more 

than a year after the Congress explicitly required MSHA to take 

charge of communications with families and the press at mine accidents—MSHA completely failed to do just that in the first test of 

its new authority. MSHA simply did not assert its control. The result: considerable misinformation was disseminated to families and 

the public. Moreover, in a move that punctuated the lack of order 

and control, MSHA even approved an unprecedented trip for some 

reporters and family members into the mine with the mine operator while rescue operations were underway and conditions remained extremely dangerous. 

It is the Committee’s view that MSHA must establish its authority in these cases, and section 7 of the MINER Act needs to be 

strengthened so that the right expertise is brought to bear in these 

situations. MSHA officials normally dispatched to a mine site to 

participate in rescue operations are experts in mine safety, and do 

not necessarily have the skills required to deal with distraught 

miner families or the press; moreover, they have critical responsibilities at the site that require their primary attention. These officials do have the best and most accurate information on the situation, but they need others to facilitate accurate communication, and 

to ensure that the questions of family members are answered in a 

timely fashion. 

Accordingly, the reported bill would strengthen the provisions of 

Section 7 of the MINER Act and make it a permanent part of the 

FMSHA. The changes to the MINER Act would include: 

• a requirement that MSHA designate a full-time permanent 

employee of that agency to serve as a family liaison, and at 

least in accidents involving multiple fatalities, that this liaison 

act as the primary communicator with the families of trapped 

miners throughout the rescue operation; 

• a requirement that MSHA be responsive to requests from 

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cluding the waiver of fees that must otherwise be assessed 

under the Freedom of Information Act; and • a requirement that the Secretary designate of a ‘‘highly 

qualified representative’’ with experience in communication be 

present at mine accident sites, throughout the duration of the 

rescue efforts, to serve as primary communicator with the 

press. 

Section 6(h)(3)(B) of the reported bill would also require each 

mine operator to include in his emergency response plan the operator’s specific plans for assisting the Secretary in the implementation of these communication responsibilities. The purpose of this requirement is to focus mine operators’ attention on the role of the 

Secretary in this regard, and on the personnel with whom the operator will come in contact during any rescue. The change will ensure 

that each operator is prepared to coordinate with these personnel, 

and if concerns are identified during the emergency response plan 

review process, they can be addressed before a real emergency occurs. 

Finally, section 6(h)(3)(A) of the reported bill would address an 

apparent anomaly in the law that denied miners trapped in the 

Crandall Canyon mine an opportunity to appoint a designated representative to represent their interests under the FMSHA. The bill 

provides that when a miner is trapped, a family member may execute a designation on his or her behalf. At Crandall Canyon, MSHA 

denied the requests of family members to make such designations. 

While the exact sequence of events remains in dispute, the situation revealed a deficiency in the law which the reported bill will 

correct. 

(i) Recovery.— This subsection is designed to address definitively two additional 

questions that arose in connection with the situation at Crandall 

Canyon—who decides when rescue efforts cease and the effort to 

recover remains begins and under what criteria, and who decides 

when efforts to recover remains should cease and under what criteria. 

The reported bill would in both cases vest this authority in the 

Secretary’s representative, clarifying that these are not decisions 

for the mine operator or miner families, although the Committee 

expects the Secretary’s representative to consult both before making any such decision. In both cases, the reported bill would utilize 

the same criterion for ceasing operations: whether continuing 

would pose a serious danger to rescue, recovery or other workers. 

(j) Accident and Incident Investigations.—

The mining community, state authorities, and the Congress are 

completely dissatisfied with the current framework for investigating accidents where there are multiple fatalities. The reported 

bill would provide for independent investigations in such cases to 

supplement and complement the investigations being conducted by 

the Department of Labor. 

Under the present system, two investigations are conducted of 

such accidents and both of them are conducted by MSHA, the agency also responsible for protecting miner safety and health. The first 

investigation, known as an ‘‘accident’’ investigation, is conducted to 

determine if there is civil and criminal liability for the event and 

often take a year. MSHA utilizes staff from around the country to 


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conduct these investigations. The procedure varies each time. Witnesses are interviewed, sometimes with others present and sometimes without, but seldom with the families represented, and never 

in public. The families are not allowed to pose questions to the witnesses. And when reports are issued, they do not include recommendations for new standards or practices. 

The second investigation, known as an ‘‘internal’’ investigation, is 

normally conducted by the office within MSHA that establishes requirements for employees to follow in implementing the law and 

regulations (although in the most recently initiated internal investigation concerning Crandall Canyon, the Department has asked 

two former employees to take charge of the review). The purpose 

of the internal investigation is to determine if employees followed 

policy in the run-up to the accident and during rescue and recovery 

efforts. 

In addition, the Office of the Inspector General in the Department of Labor may conduct its own investigation of employee conduct to determine if laws and regulations relating to employee conduct have been violated (e.g., allegations of bribery). The Committee has also been advised that the Chemical Safety Board (CSB) 

may have some jurisdiction to conduct investigations of mining accidents and could elect to do so where it has some expertise (explosions) and resources. However, the CSB has not done so to date. 

With these limited exceptions, there is no statutory mechanism for 

any body other than MSHA to investigate multiple fatality mine 

accidents or to investigate the agency’s role in connection therewith. 

The Committee believes a consensus exists in the mining community that independent investigations of such accidents are necessary and feasible. Miners working in the same mine or for the 

same mine operator or under similar conditions want to know 

whether they are safe, as do their families. Mine operators need to 

know whether to change practices before the same problem recurs. 

The families of those who died want more active roles in determining what happened; they simply do not trust MSHA to get at 

the truth in closed mining communities. At the same time the mining community respects the expertise vested in MSHA and wants 

to continue to put that expertise to good use in investigating mine 

accidents. 

The Department of Labor has not been helpful in bridging the 

gap between expectations and reality. In recent years, the procedures used by MSHA to investigate each accident have been different each time, fueling procedural debate at a time when the 

focus should be on getting information. MSHA had begun rulemaking to standardize these procedures, but that effort was discontinued by the current Administration and we understand it is opposed on the grounds that flexibility is preferred. The Office of the 

Solicitor has made it very difficult for this Committee to gather the 

information needed in our own investigation of the tragedy at 

Crandall Canyon. This is true for the State of Utah as well, which 

is conducting its own investigation. While the Committee fully respects the authority of the Department, these accidents are, unfortunately, happening with enough frequency that some standardization of procedures for cooperation is clearly required. 


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Accordingly, the bill expands existing section 103(b) of the 

FMSHA to spell out MSHA’s accident investigation responsibilities, 

to establish a mechanism for the rapid appointment of an independent investigation panel in multiple fatality cases and to ensure 

that this legislation does not in any way alter whatever authority 

the CSB might have (and that the Inspector General clearly does 

have) under law to investigate mine accidents or the conduct of 

DOL personnel in connection therewith. 

New section 103(b)(1) explicitly sets forth the varied purposes of 

accident investigations by the Secretary—something not included 

in the statute at present. These include: • an explanation of why an accident or incident occurred; • a determination of whether civil or criminal requirements 

were violated; • a determination of the appropriate citations and penalties 

to be assessed; and • any recommendations to avoid any recurrence. 

In addition, the Secretary is to determine whether the action or 

lack thereof by Agency personnel contributed to the accident or incident. In other words, this paragraph retains and expands upon 

MSHA’s existing investigative responsibilities. 

New section 103(b)(2)(A) provides that there shall also be an 

independent investigation of any accident or incident involving 

multiple serious injuries or deaths, to consider why it occurred, 

make recommendations to avoid a recurrence and determine 

whether the action or lack thereof by agency personnel contributed 

to the accident or incident. 

New section 103(b)(2)(B) requires the Secretary to initiate rulemaking promptly in order to establish rules and procedures for the 

independent investigations. No such rules and procedures needs to 

be established for MSHA’s own investigations; however, see the discussion infra of new paragraph 103(b)(2)(D). The reported bill requires the Secretary in the course of the process to reach out to certain interested groups which can shed light on how to approach 

this matter—including family members of miners who perished in 

the last decade, organizations representing miners, mine rescue 

workers, and Federal, state and local prosecutorial authorities—

and to complete the rulemaking by October 1, 2008. 

New section 103(b)(2)(C) provides that each independent investigation team is to be quickly appointed after a qualifying accident 

by the Director of NIOSH. One member is to be appointed from 

NIOSH and is to chair the team. The other members include a representative of mine operators with familiarity with the type of mining involved, a representative of mine workers with similar familiarity, an academic with expertise in mining and a representative 

of the state where the incident occurred. The miner representative 

is to be the workers’ certified bargaining representative at the mine 

if there is one, and if not, someone appointed by labor organizations. The state representative is to be appointed by the Governor. 

The Committee’s purpose in specifying the composition of these 

teams is to ensure that their report has widespread credibility in 

the mining community. 

New section 103(b)(2)(D) provides that the rules for the operation 

of the independent teams—the rules to be established pursuant to 

section 103(b)(2)(B) by October 1, 2008—‘‘ensure that the Secretary 


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will be able to cooperate fully with the independent investigation 

team and will use the powers of the Secretary under this section 

to help obtain information and witnesses required by the independent investigation team.’’ In essence, this means that by October 1, 2008, after consulting with all the interested parties, the 

Secretary needs to set forth a process which enables both the 

MSHA investigations and the independent investigation to move 

forward simultaneously. The rules must also provide for MSHA to 

use the new subpoena authority it is receiving under this bill to facilitate the work of the independent investigation team as well as 

its own investigation. The Committee hopes that the extensive discussions of such matters which have taken place in the context of 

the investigations of recent mine tragedies, as well as the requirement that the Secretary consult widely in developing the procedural rules, will facilitate an agreement on the details. The Committee expects the Department to keep it closely informed on these 

matters. 

The procedures to be established for the independent panel must 

also meet certain other requirements set forth in new section 

103(b)(2)(D). The procedures must ensure that witnesses are not 

coerced and conflicts of interest in witness representation avoided, 

and ensure confidentiality if requested by any witness. These have 

proven to be complex sticking points in practice, and establishing 

standardized procedures should facilitate further investigations. In 

this regard, note that section 5 (k)(4)(C) of the bill provides that 

no attorney representing a mine operator in a matter under this 

Act may concurrently represent individual miners in the same matter, a requirement that includes, but is not limited to, accident investigations. The rules are also to permit the independent investigation team to conduct public hearings as part of its process if it 

deems them appropriate. 

The rules must also contain provisions that require the independent investigation team to issue findings concerning the cause 

of the incident and to make recommendations as to policy, regulatory, enforcement or other changes, including statutory changes, 

which in its judgment would best prevent a recurrence of such actions or inactions at other mines. The rules shall also require the 

team to make all such findings public (including public hearings to 

inform the mining community of these findings) in a timely fashion. A limited exemption is provided for findings and recommendations that must be temporarily withheld in connection with a criminal referral. 

New section 103(b)(2)(E) requires the Secretary to track the implementation of accident and incident recommendations by independent investigation teams and provide such information annually 

to Congress. MSHA does not currently do this, and it has been suggested that the failure to follow up on past accident reports is one 

of the reasons why the tragedies of 2006 took place. 

New section 103(b)(3) provides that nothing in this bill in any 

way limits the authority of the CSB to conduct an independent investigation of a mining accident or incident, or of the Inspector 

General to conduct an investigation of the conduct of DOL personnel in connection with an accident or incident. It also requires 

the Secretary to cooperate with any such investigation(s). Although 

not mentioned explicitly in this new section, the Committee wishes 


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87 Indeed, the compensation program for miners who incur black lung disease, including the 

portion paid by the Federal government, was a critical part of that law. See Title IV of the 

FMSHA. 

to make it clear that the bill is not intended to interfere with any 

other authority of the Inspector General. 

Sec. 7. Respirable Dust Standards. 

(a) Respirable Dust; Respirable Silica Dust.—The 1977 Federal 

Mine Safety and Health Act established the standards to be applicable to respirable coal dust by law. The law specified who was responsible for measuring compliance, the instruments to be used, 

and other exposure limit. The law further specified that exposure 

of miners to respirable coal dust was to be reduced when respirable 

silica dust was also present. 

These requirements were a critical part of the 1977 law, and 

were designed to eliminate black lung disease and silicosis among 

the mining population.87 Unfortunately, these requirements did not 

eliminate new occurrences, and it has become clear that after years 

of efforts to amend the existing rules and to develop new instrumentation permitting real-time accurate exposure information for 

coal dust, MSHA has simply failed to protect the safety and health 

of miners. 

Accordingly, 40 years after the Federal Mine Safety and Health 

Act, the bill would have the Congress once again set the appropriate standards. The permitted limit for coal dust would be cut in 

half, consistent with the recommendations of the National Institute 

for Occupational Safety and Health (NIOSH), and the permitted 

dose would be adjusted to reflect hours actually worked. A separate 

limit would be established for silica, again consistent with the recommendations of NIOSH. The bill would require that compliance 

sampling be done by the Federal government, not mine operators 

as at present, based on a long history of fraud and abuse. 

The bill would require the use of the NIOSH developed and certified Personal Dust Monitor (PDM) for all coal dust sampling (traditional methods will be used for silica dust sampling). These devices continuously display current exposures, and record them in a 

form that can be electronically downloaded each shift to the operator and MSHA. The bill would further require that all underground miners be equipped with PDMs, so that they will be able 

to adjust their work to keep their exposure below the applicable 

limits. While the requirement for PDMs will result in an initial expense for coal mine operators, the savings due to improved miner 

health will be substantial. 

It should be noted that the bill’s specification of a silica dust 

standard is not limited to coal mines; rather, it applies to non-coal 

mines as well, since there is also silica exposure in these mines. 

(b) Conforming amendment.—Because the bill would provide for 

an independent silica standard, this amendment strikes section 205 

of the FMSHA which provided for adjusting the amount of respirable coal dust by the amount of respirable silica dust. 

(c) Assessment on Program Operations of Cumulative Impact of 

External Requirements Added Since 1977.—The need to make so 

many amendments to MSHA standards by legislation evidences the 

fact that the agency has been very unsuccessful in using its rulemaking authority. The bill would require the National Academy of 

Sciences to conduct a study of the various statutes, executive orVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00083 Fmt 6659 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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88 H.R. 3160, the ‘‘Comprehensive Occupational Safety and Health Reform Act’’, Rept. 103–

663. See p. 67, discussion of section 405 of the bill. 89 Reaching a Consensus to Update OSHA’s Permissible Exposure Levels, Hearing before the 

Subcommittee on Workforce Protections, July 16, 2002, Serial No. 107–72. 

ders, and memoranda that have been issued since the Mine Act 

was passed in 1977 to examine the impact they have had on the 

rulemaking authority provided under the law, and to quantify to 

the extent possible the costs these requirements have imposed 

upon miners. 

Sec. 8. Other Health Requirements. 

(a) Air Contaminants.—The 1977 Federal Mine Safety and 

Health Act required MSHA to immediately adopt hundreds of existing ‘‘permissible exposure limits’’ (PELs) developed by various 

professional organizations so that it would have standards to apply 

to the mines. As with coal dust and silica, however, MSHA has 

been unable to update these PELs per customer due to complexities 

of the regulatory process in the law as interpreted by the courts. 

A comprehensive effort started in 1983 to update the PELs was 

halted. As a result, most of the PELs are now 40 years out of date. 

While many mine operators do comply with much more recent recommendations of the professional organizations, or international 

standards, MSHA is unable to require all mine operators to do so. 

The Committee has not been unaware of this problem. As explained in the general discussion of this problem in this report, 

supra, legislation that would have addressed a similar problem 

faced by OSHA was reported out of the Committee 15 years ago, 

on July 9, 1992.88 The bill was not enacted and OSHA reform efforts stalled. A decade later, on July 16, 2002, a hearing was held 

by the Subcommittee on Workforce Protections to explore whether 

a consensus could be reached on how to resolve the problem in the 

OSHA context.89 Despite the efforts undertaken by Representative 

Charlie Norwood who was Chair of the Subcommittee, and by others, no consensus was achieved at that time. 

The Committee believes the time for action is long overdue. The 

bill reported by the Committee provides that notwithstanding the 

other requirements of section 101 of the Federal Mine Safety and 

Health Act, MSHA is to adopt existing ‘‘recommended exposure 

limits’’ developed by NIOSH as ‘‘permissible exposure limits’’ that 

are enforceable under the FMSHA. In practice, this in most cases 

means updating limits already adopted by MSHA. MSHA must 

take this action within 60 days of enactment of the S-MINER Act, 

subject to the important exception noted in the following paragraph. To avoid allowing this problem of dated exposure limits to 

continuously recur, the bill would also require MSHA to continue 

to update the PELs as new NIOSH recommended exposure limits 

are issued. 

The reported bill further provides that upon petition for miners 

or mine operators ‘‘providing credible evidence that feasibility may 

be an issue for the industry as a whole’’, the Secretary is to review 

the feasibility of any PEL before placing it into effect and, following 

notice and comment, make necessary adjustments thereto. The bill 

imposes a one-year deadline on this process to ensure such actions 

do not get stalled. 

The Committee understands that applying most of the RELs as 

PELs for the mining industry will not create feasibility problems, 


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but the reported bill ensures that MSHA examines the issue when 

there is a question in this regard. The Committee intends that this 

be done through the normal rulemaking process. The Committee 

intends that the feasibility test for this purpose be interpreted just 

like the same language applicable under the FMSHA to all other 

MSHA standards, including health standards—the rule must be 

both economically and technologically feasible for the industry as 

a whole. 

Because the bill seeks to expedite the updating of many exposure 

limits in short order, it provides that MSHA would only be required to conduct rulemaking on the question of feasibility when 

presented with credible evidence that feasibility (as so defined) is 

a problem. Just as with any other standard, MSHA’s decision not 

to examine feasibility would be subject to judicial review, under an 

‘‘arbitrary and capricious’’ standard. 

What MSHA would not have to do in such cases is to make its 

own determination about the science supporting the proposed new 

PEL; the REL developed by NIOSH, established by law as the scientific support agency for MSHA, would be adequate where just an 

exposure limit is at issue. Should MSHA wish to develop a more 

specific health protection standard, as it did in the case of diesel 

particulate matter, it would have to meet the requirements of section 101(a)(6)(A) of the FMSHA for health standards. 

The reported bill also provides that where a REL is not sufficiently detailed to serve as a PEL, the Secretary may defer implementation of the bill’s requirement that it be adopted as a PEL, 

and instead request NIOSH to recommend a sufficiently detailed 

REL to adopt as a PEL. 

The Committee reported bill does not change the authority of 

NIOSH or MSHA in other ways concerning the recommendation or 

adoption of standards. Nor does the bill alter MSHA’s obligations 

under other laws, such as the Regulatory Flexibility Act, when the 

agency goes through rulemaking on the issue of feasibility. If industry has no credible feasibility concerns about adopting a particular REL as a PEL, there would be no rulemaking and hence no 

need for a regulatory flexibility analysis. But if the industry has 

credible feasibility concerns, MSHA would have to conduct rulemaking on that question, and an RFA analysis would be part of 

what the agency takes into consideration in making its decision 

under the Federal Mine Safety and Health Act. 

(b) Asbestos.—Miners in certain types of mining operations are 

exposed to hazardous asbestos. The current MSHA standard is 

years out of date and not as protective as the current OSHA standard applicable to all other workers. A rulemaking action to update 

MSHA’s standard has been pending for years without final action. 

The bill would require MSHA to promptly adopt the OSHA 

standard. The bill provides, however, that the Secretary is not precluded from adopting regulations to address asbestos hazards to 

miners not covered by the OSHA regulations. 

(c) Hazard communication.—A hazard communication rule requires those who produce or provide potentially hazardous substances to provide certain information to users in the form of Material Safety Data Sheets (MSDSs). The practice is now universal 

and considered the first line of defense for worker health. However, 

in June 2002, MSHA amended the MSHA rule to significantly 


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weaken it—essentially by allowing the use of MSDSs with dated 

scientific information. 

Section 101(a)(9) of the Federal Mine Safety and Health Act provides that: ‘‘No mandatory health or safety standard promulgated 

under this title shall reduce the protection afforded miners by an 

existing mandatory health or safety standard.’’ That is just what 

MSHA did in 2002. To remedy this problem, the bill would specifically require MSHA to enforce the rule that was in place prior to 

these changes. 

VI. EXPLANATION OF AMENDMENTS

The Committee adopted a substitute amendment to the bill. The 

substitute amendment is described in total in the summary of the 

bill above. The Committee adopted no other amendments. 

VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1, the Congressional Accountability Act, requires a description of the application of this bill 

to the legislative branch. H.R. 2768 would have no direct impact 

on the legislative branch. 

VIII. REGULATORY IMPACT STATEMENT

The Committee has determined that H.R. 2768 will have a minimal impact on the regulatory burden. In fact, H.R. 2768 will reduce 

the Department of Labor’s regulatory burden significantly by enacting into law a number of matters that have been pending on its 

regulatory agenda for some time. 

IX. UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. This 

issue is addressed in the CBO letter. 

X. EARMARK STATEMENT

H.R. 2768 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) 

or 9(f) of rule XXI. 


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XII. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS

OF THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

XIII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of 

3(c)(3) of rule XIII of the House of Representatives and section 402 

of the Congressional Budget Act of 1974, the Committee has received the following estimate for H.R. 2768 from the Director of the 

Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, November 15, 2007. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2768, the Supplemental 

Mine Improvement and New Emergency Response Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Geoffrey Gerhardt. 

Sincerely, 

ROBERT A. SUNSHINE

(For Peter R. Orszag, Director). 

Enclosure. 

H.R. 2768—Supplemental Mine Improvement and New Emergency 

Response Act of 2007 

Summary: The Supplemental Mine Improvement and New Emergency Response Act of 2007, H.R. 2768 would require operators of 

mineral and non-mineral mines to increase worker safety measures 

and improve emergency preparedness. It would require the Mine 

Safety and Health Administration (MSHA) to issue new regulations 

on a variety of mine safety issues, including underground refuges, 

mine ventilation, and communication systems. H.R. 2768 also 

would temporarily suspend limits on the number of mine inspectors 

employed by MSHA, and would call for an increase in mine inspection activities. In addition, the bill would require the agency to 

maintain and publish detailed maps of active and abandoned mines 

in the United States. The bill would also adjust the minimum and 

maximum civil penalties that MSHA may levy on mine operators. 

Assuming appropriation of the necessary amounts, CBO estimates that implementing the bill would cost $14 million in 2008 

and $117 million over the 2008–2012 period. By increasing civil 

penalties, H.R. 2768 would increase federal revenues by $14 million in 2009, $68 million over the 2008–2012 period, and $157 million over the 2008–2017 period, CBO estimates. Enacting H.R. 

2768 would not affect direct spending. 


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H.R. 2768 contains an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act (UMRA) because it would 

limit the authority of states to disbar or discipline attorneys in 

some circumstances. CBO estimates, however, that the mandate 

would impose no costs on state, local, or tribal governments. 

H.R. 2768 would impose several mandates, as defined in UMRA, 

on operators of underground mines. Those mandates would require 

operators to install certain systems and devices, provide equipment 

to miners, and comply with other safety requirements. Based on information from MSHA and industry experts, CBO expects the aggregate cost of the mandates would exceed the annual threshold established in UMRA ($131 million in 2007, adjusted annually for inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 2768 is shown in the following table. The costs 

of this legislation fall within budget function 550 (health). 

By fiscal year, in millions of dollars—

2008 2009 2010 2011 2012 2008- 

2012 

2008- 

2017 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level 1 ................................. 19 21 27 27 27 121 n.a. 

Estimated Outlays ....................................................... 14 23 26 27 27 117 n.a. 

CHANGES IN REVENUES 

Estimated Revenues .................................................... * 14 18 18 18 68 157 

Notes: n.a. = Not applicable; * = Less than $500,000. 

1 Although fiscal year 2008 is already underway, this estimate assumes final appropriation legislation for 2008 action would include funding for activities required by H.R. 2768. 

Basis of estimate: 

Changes in spending subject to appropriation 

Assuming appropriation of the necessary amounts, CBO estimates the total cost to the federal government of implementing 

H.R. 2768 would be $14 million in 2008 and $117 million over the 

2008–2012 period. This estimate assumes that the necessary funds 

would be appropriated early in fiscal year 2008 and for subsequent 

years and that outlays would follow historical patterns for similar 

activities. 

Among the provisions contained in the bill, H.R. 2768 would: 

• Require MSHA to establish a mining map repository and 

post copies of all maps on the internet, 

• Require MSHA to inspect all mine seals under construction and a sample of existing seals, 

• Mandate the inspection of self-rescue vehicles by the National Institute for Occupational Safety and Health, 

• Institute a new mine safety inspector initiative and provide MSHA with conditional authority to hire contractors to 

perform mine inspections, 

• Require MSHA to establish and maintain a 24-hour emergency call center, 

• Require MSHA to designate at least one employee to serve 

as a family liaison during events when miners are trapped or 

injured, 

• Require numerous reports on various subjects from MSHA 

and the National Academy of Sciences, and 


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• Require the Department of Labor to establish a mine safety advisory committee as well as an office of miner ombudsman 

to monitor mine safety. 

The largest portion of the bill’s cost is attributable to the requirement that MSHA maintain a repository for maps of all active and 

abandoned mines in the United States and post digitized versions 

of those maps on the internet. There are more than 10,000 active 

mines in the United States and the number of abandoned mines 

has been estimated at more than half a million. Several states and 

the federal government have programs underway to digitize certain 

mine maps, but the vast majority of mining maps have not been 

digitized. The cost of collecting, scanning, electronically posting and 

storing those maps could be substantial. Based on information from 

MSHA and other sources, CBO estimates the cost to MSHA of implementing this requirement alone would be more than $50 million 

over the 2008–2012 period. Most of the other major provisions 

would cost between $1 million and $3 million per year. 

Revenues 

Under current law, civil penalties for mine safety violations are 

capped at $60,000 per violation. MSHA also assesses a minimum 

penalty of $100. Under H.R. 2768, both the cap and floor would be 

adjusted for both ‘‘significant and substantial’’ violations and all 

other violations. For ‘‘significant and substantial’’ violations, the 

bill would set the minimum penalty at $1,000 and the maximum 

at $150,000 for each violation. For other violations, H.R. 2768 

would create a minimum of $500 and a maximum of $100,000 for 

each violation. Further, the law would create a new fine for patterns of mine health and safety violations with a minimum of 

$50,000 and a maximum of $250,000. Additionally, the bill would 

adjust the minimum and maximum fines for discrimination against 

an individual who files a complaint and for interference with a 

mine inspection to $10,000 and $100,000. Civil penalties are recorded in the federal budget as revenues net of offsetting effects on 

income and payroll tax receipts. 

Based on information provided by MSHA on past violations, CBO 

estimates those changes would increase federal revenues by $14 

million in 2009, by $68 million over the 2008–2012 period, and by 

$157 million over the 2008–2017 period. 

Estimated impact on state, local, and tribal governments: States 

currently have the authority to establish and enforce standards of 

conduct for attorneys practicing in their states. H.R. 2768 would 

prohibit any state bar or state court from disbarring or disciplining 

an attorney under some circumstances. The bill would protect attorneys for the Department of Labor who contact miners or nonmanagerial mining employees during the course of a safety investigation from disciplinary action or disbarment under state law. 

That preemption of state law and disciplinary standards would be 

an intergovernmental mandate as defined in UMRA. However, because the preemption would simply limit the application of state 

laws, CBO estimates that the mandate would impose no costs on 

state, local, or tribal governments. 

Estimated impact on the private sector: H.R. 2768 would impose 

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ground mines. Those mandates include, but are not limited to, requirements to: 

• Install conveyor belts that meet certain flame resistance 

requirements by 2012; 

• Monitor behind certain mine seals using a continuous motoring device; 

• Equip each miner with a personal dust monitor; 

• Install an atmospheric monitoring system; and 

• Provide a certain post-accident communication and tracking system. 

CBO expects the aggregate cost of the mandates in the bill would 

exceed the annual threshold established in UMRA ($131 million in 

2007, adjusted annually for inflation). 

Conveyer belts 

Section 4(d) would require operators of underground coal, metal, 

and nonmetal mines to install conveyor belts by December 31, 2012 

that meet certain flame resistance requirements recommended by 

the National Institute for Occupational Safety and Health. Based 

on information from industry experts, CBO expects most belts, if 

not all, would have to be replaced. According to those experts and 

MSHA, the total length of conveyor belts in 4 underground mines 

(coal, metal, and nonmetal mines) is greater than 25 million linear 

feet and the price of the compliant belt would be about 40 percent 

greater than the current price per linear foot (about $46/ft) for conveyor belts. Based on those data, and assuming that fewer than 20 

percent of the belts are replaced on average each year, the incremental cost of purchasing belts that comply with the new standard 

would be more than $600 million over the 2008–2012 period. The 

cost would also include installation costs for belts that would not 

otherwise be replaced during the five-year period. 

Continuous monitoring devices 

Section 4(c) would require operators of underground coal mines 

to monitor seals that cannot withstand a constant total pressure of 

240 pounds per square inch. The monitoring of seals would have 

to be done with continuous monitoring devices. According to industry sources, continuous monitoring devices are not currently used 

in underground mines in the United States. Those sources also estimate that the devices could cost up to $400,000 per system to install based on the cost of such systems in Australia. Based on an 

MSHA estimate that approximately 300 underground mines would 

monitor seals, the cost of the mandate could amount to about $120 

million. 

Personal dust monitors 

Section 7 would require each coal miner in an underground mine 

to be equipped with a personal dust monitor that measures, 

records, and displays in real time the concentration of respirable 

dust. According to industry experts, personal dust monitors that 

meet those specifications cost between $8,000 and $12,000. According to data from MSHA, approximately 42,000 miners are employed in underground coal mines. If one-fourth to one-third of the 

workforce is working underground during a shift, the initial cost to 


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supply each worker on a shift with personal dust monitors would 

amount to at least $100 million. 

Atmospheric monitoring systems 

Section 4(f) would require operators of an underground mine to 

install atmospheric monitoring systems in all underground areas 

where miners normally work and travel. Currently, MSHA only requires an atmospheric monitoring system to be installed when belt 

air is used for ventilation. Based on information from MSHA, CBO 

expects that more than 400 mines would be required to install an 

atmospheric monitoring system at a cost of $150,000 per mine. 

Therefore, the initial cost to the industry to comply with the mandate would be greater than $60 million. 

Post-Accident communication systems 

Section 4(a) would require operators of underground coal mines 

to provide for a post-accident communication system that is at least 

as effective as a wireless mesh type or a ‘leaky feeder’ communication and tracking system within 120 days of the date of enactment. 

According to industry sources, only leaky feeder systems have been 

approved by MSHA. Based on information from MSHA, CBO expects that approximately 500 mines would be required to install a 

system at an average cost of $400,000 per mine. 

Other mandates 

The bill would impose several other mandates on operators of underground mines. It would prohibit the use of certain ventilation 

systems except in the case of safety constraints. Based on information from industry experts, CBO expects that few mines would 

have to provide another entry for ventilation and, therefore, that 

the cost would not be significant. 

In addition, the bill would require operators to comply with regulations issued by MSHA for seals in underground coal mines and 

expand existing seal requirements to certain seals in underground 

metal and nonmetal mines. Operators also would be required to 

comply with new requirements for refuge chambers, ventilation 

controls, and roof screens. Additional mandates would establish 

standards for respirable dust and other chemicals, and require operators to comply with reporting and notification requirements. 

CBO has no basis to determine the costs to comply with those mandates. 

Estimate prepared by: Federal spending: Geoffrey Gerhardt; Federal revenues: Zachary Epstein; Impact on state, local, and tribal 

governments: Lisa Ramirez-Branum; Impact on the private sector: 

Amy Petz. 

Estimate approved by: Keith J. Fontenot, Deputy Assistant Director for Health and Human Resources, Budget Analysis Division. 

XIV. STATEMENT OF GENERAL PERFORMANCE GOALS AND

OBJECTIVES

In accordance with Clause 3(c) of House rule XIII, the goal of 

H.R. 2768 is to improve the protection of the Nation’s miners from 

occupational safety and health hazards. 


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XV. CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress in the Constitution to 

enact the law proposed by H.R. 2768. The Committee believes that 

the amendments made by this bill, which amends the Federal Mine 

Safety and Health Act to provide increased protection to miners 

from occupational safety and health hazards, are within Congress’

authority under Article I, section 8, clause 3 of the Constitution of 

the United States. 

XVI. COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 2768. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 

* * * * * * * 

DEFINITIONS

SEC. 3. For the purpose of this Act, the term—

(a) * * * 

* * * * * * * 

(d) ‘‘operator’’ means any mineral owner, mineral lessee, or other 

person who operates, controls, or supervises a coal or other mine 

øor¿ and any independent contractor performing services or construction at such mine, and no operator may, by contract or other 

agreement, limit any liability under this Act through transfer of any 

responsibilities to another person; 

** * * * * * * 

TITLE I—GENERAL 

MANDATORY SAFETY AND HEALTH STANDARDS

SEC. 101. (a) * * * 

* * * * * * * 

(f) Notwithstanding the other requirements of this section, not 

later than 30 days of the enactment of the S–MINER Act, the National Institute for Occupational Safety and Health shall forward to 


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the Secretary its Recommended Exposure Limits (RELs) for chemical and other hazards to which miners may be exposed, along with 

the research data and other necessary information. Within 30 days 

of receipt of this information, the Secretary shall to adopt such recommended exposure limits as the Permissible Exposure Limits 

(PELs) for application in the mining industry. The National Institute of Occupational Safety and Health shall annually submit to the 

Secretary any additional or revised recommended exposure limits 

for all chemicals and other hazards to which miners may be exposed, and the Secretary shall be obligated to adopt such exposure 

limits as PELs for application in the mining industry within 30 

days of receipt of such information. Upon petition from miners or 

mine operators providing credible evidence that feasibility may be 

an issue for the industry as a whole, the Secretary may review the 

feasibility of any PEL established pursuant to this paragraph before 

placing it into effect and, following public notice and comment, 

make necessary adjustments thereto, provided that the adjusted 

standard is as protective as is feasible, and that the PEL shall go 

into effect as required by the other provisions of this paragraph if 

such action is not completed within one year. Moreover, upon petition from miners or mine operators providing credible evidence that 

a REL issued by the National Institute of Occupational Safety and 

Health lacks the specificity required to serve as a PEL pursuant to 

this Act, the Secretary may defer implementation of the requirements of this paragraph and shall promptly request National Institute of Occupational Safety and Health to recommend a sufficiently 

detailed REL, at which time the provisions of this paragraph shall 

be implemented. Nothing in this subsection shall limit the ability of 

the National Institute of Occupational Safety and Health to make 

such recommendations more frequently than 1 time per year, nor 

limit the Secretary from establishing requirements for chemical and 

other substances or health hazards in the mining industry that are 

more comprehensive and protective than those established pursuant 

to this subsection and in accordance with the other requirements of 

this section. 

(g) The health standard for asbestos established by the Occupational Safety and Health Administration that is set forth in section 

1910.1001 of title 29, Code of Federal Regulations, or any subsequent revision of that regulation, shall be adopted by the Secretary 

for application in the mining industry not later than 30 days of the 

enactment of the S–MINER Act. Nothing in this paragraph shall 

preclude the Secretary from adopting regulations to address asbestos hazards to miners not covered by the regulations of the Occupational Safety and Health Administration. 

(h) Unless and until there is additional rulemaking pursuant to 

the requirements of this section, the Secretary shall apply the provisions of the interim final rule of October 3, 2000, concerning hazard 

communication, in lieu of the final rule of June 21, 2002, concerning hazard communication. 

* * * * * * * 

INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

SEC. 103. (a) Authorized representatives of the Secretary or the 

Secretary of Health, Education, and Welfare shall make frequent 


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inspections and investigations in coal or other mines each year for 

the purpose of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in such mines, (2) gathering information with respect to 

mandatory health or safety standards, (3) determining whether an 

imminent danger exists, and (4) determining whether there is compliance with the mandatory health or safety standards or with any 

citation, order, or decision issued under this title or other requirements of this Act. In carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any 

person, except that in carrying out the requirements of clauses (1) 

and (2) of this subsection, the Secretary of Health, Education, and 

Welfare may give advance notice of inspections. In carrying out the 

requirements of clauses (3) and (4) of this subsection, the Secretary 

shall make inspections of each underground coal or other mine in 

its entirety at least four times a year, and of each surface coal or 

other mine in its entirety at least two times a year. The Secretary 

shall develop guidelines for additional inspections of mines based 

on criteria including, but not limited to, the hazards found in mines 

subject to this Act, and his experience under this Act and other 

health and safety laws. For the purpose of making any inspection 

or investigation under this Act, the Secretary, or the Secretary of 

Health, Education, and Welfare, with respect to fulfilling his responsibilities under this Act, or any authorized representative of 

the Secretary or the Secretary of Health, Education, and Welfare, 

shall have a right of entry to, upon, or through any coal or other 

mine. No person shall limit or otherwise prevent the Secretary from 

entry on a coal or other mine, or interfere with the Secretary’s inspection activities, investigative activities, or rescue or recovery activities. 

(b)(1) For all accident and incident investigations under this Act, 

the Secretary shall determine why the accident or incident occurred; 

determine whether civil or criminal requirements were violated and, 

if so, issue citations and penalties, and make recommendations to 

avoid any recurrence. The Secretary shall also determine whether 

the conduct or lack thereof by Agency personnel contributed to the 

accident or incident. 

(2)(A) For any accidents or incidents involving multiple serious 

injuries or deaths, or multiple entrapments, there shall also be an 

independent investigation to consider why the accident or incident 

occurred, make recommendations to avoid a recurrence, and determine whether the conduct or lack thereof by agency personnel contributed to the accident or incident. 

(B) Not later than 30 days after the date of enactment of the S–

MINER Act, the Secretary shall initiate rulemaking activity to establish rules on the procedures that will be used to investigate accidents and incidents involving multiple serious injuries or deaths, or 

multiple entrapments, and shall directly contact and solicit the participation of 

(i) individuals identified by the Secretary as family members 

of miners who perished in mining accidents of any type during 

the preceding 10-year period; 

(ii) organizations representing miners; 

(iii) mine rescue teams; 


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(iv) Federal, State, and local investigation and prosecutorial 

authorities; and 

(v) others whom the Secretary determines may have information relevant to this rulemaking. 

Such rulemaking shall be completed by October 1, 2008. 

(C) The rules for the investigation of accidents or incidents involving multiple serious injuries or deaths, or multiple entrapments, 

shall provide for the appointment and operations of any such independent investigation team in accordance with the requirements of 

this paragraph. An independent investigation team shall be appointed by the Director of the National Institute for Occupational 

Safety and Health as soon as possible after a qualifying accident or 

incident. The members shall consist of: 

(i) a representative from the National Institute for Occupational Safety and Health who shall serve as the Chairman; 

(ii) a representative of mine operators with familiarity with 

the type of mining involved; 

(iii) a representative of mine workers with familiarity with 

the type of mining involved, who shall be the workers’ certified 

bargaining representative at the mine or, if there is no certified 

representative at the mine, then a workers’ representative jointly 

selected by organized labor organizations: 

(iv) an academic with expertise in mining; and 

(v) a representative of the State in which the accident or incident occurred to be selected by the Governor. 

(D) Such rules shall include procedures to ensure that the Secretary will be able to cooperate fully with the independent investigation team and will use the powers of the Secretary under this section to help obtain information and witnesses required by the independent investigation team, procedures to ensure witnesses are not 

coerced and to avoid conflicts of interest in witness representation, 

procedures to ensure confidentiality if requested by any witness, and 

procedures to enable the independent investigation team to conduct 

such public hearings as it deems appropriate. Such rules shall also 

require that upon completion of any accident or incident investigation of accidents or incidents involving multiple serious injuries or 

deaths, or multiple entrapments, the independent investigation team 

shall—

(i) issue findings as to the actions or inactions which resulted 

in the accident or incident; 

(ii) make recommendations as to policy, regulatory, enforcement or other changes, including statutory changes, which in 

the judgment of the independent investigation team would best 

prevent a recurrence of such actions or inactions at other mines; 

and 

(iii) promptly make all such findings and recommendations 

public (except findings and recommendations that must be temporarily withheld in connection with a criminal referral), including appropriate public hearings to inform the mining community of their respective findings and recommendations. 

(E) As part of the Secretary’s annual report to Congress pursuant 

to section 511(a), the Secretary shall report on implementation of 

recommendations issued by any independent investigation teams in 

the preceding 5 years. 


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øFor the purpose of making any investigation of any accident or 

other occurrence relating to health or safety in a coal or other 

mine, the Secretary may, after notice, hold public hearings, and 

may sign and issue subpoenas for the attendance and testimony of 

witnesses and the production of relevant papers, books and documents, and administer oaths.¿ 

(3) For the purpose of enabling the Secretary to perform the functions under this Act, the Secretary may, after notice, hold public 

hearings and sign and issue subpoenas for the attendance and testimony of witnesses and the production of information, including but 

not limited to relevant data, papers, books, documents and items of 

physical evidence, and administer oaths, whether or not in connection with a public hearing. Witnesses summoned shall be paid the 

same fees and mileage that are paid witnesses in the courts of the 

United States. In case of contumacy or refusal to obey a subpoena 

served upon any person under this section, the district court of the 

United States. In case of contumacy or refusal to obey a subpoena 

served upon any person under this section, the district court of the 

United States for any district in which such person is found or resides or transacts business, upon application by the United States 

and after notice to such person, shall have jurisdiction to issue an 

order requiring such person to appear and give testimony before 

the Secretary or to appear and produce ødocuments¿ information, 

including data, papers, books, documents, and items of physical evidence before the Secretary, or both, and any failure to obey such 

order of the court may be punished by such court as a contempt 

thereof. 

(4) Nothing in this Act shall be construed to limit the authority 

of the Chemical Safety and Hazard Investigation Board to conduct 

an independent investigation of the accident or incident or the 

events or factors resulting therein, nor with the authority of the Office of the Inspector General to conduct an investigation of the conduct of DOL personnel in connection with an accident or incident 

or the events or factors resulting therein, and the Secretary shall cooperate in full with any such investigation. Such investigation shall 

be in addition to any investigation authorized by section 103(b). 

* * * * * * * 

(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners 

shall be given an opportunity to accompany the Secretary of his authorized representative during the physical inspection of any coal 

or other mine made pursuant to the provisions of subsection (a), for 

the purpose of aiding such inspection and to participate in pre- or 

post-inspection conferences held at the mine, and to participate in 

any accident investigation pursuant to the requirements of this Act. 

Any family member of a miner trapped or otherwise unable to execute a designation of a miner representative on his or her own behalf may do so on behalf of the miner for any and all purposes. Where there is no authorized miner representative, the Secretary 

or his authorized representative shall consult with a reasonable 

number of miners concerning matters of health and safety in such 

mine. Such representative of miners who is also an employee of the 

operator shall suffer no loss of pay during the period of his participation in the inspection made under this subsection. To the extent 

that the Secretary or authorized representative of the Secretary deVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00100 Fmt 6659 Sfmt 6601 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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termines that more than one representative from each party would 

further aid the inspection, he can permit each party to have an 

equal number of such additional representatives. However, only 

one such representative of miners who is an employee of the operator shall be entitled to suffer no loss of pay during the period of 

such participation under the provisions of this subsection. Compliance with this subsection shall not be a jurisdictional prerequisite 

to the enforcement of any provision of this Act. 

* * * * * * * 

(h) In addition to such records as are specifically required by this 

Act, every operator of a coal or other mine shall establish and 

maintain such records, make such reports, and provide such øinformation¿ data, papers, books, documents, and items of physical evidence, as the Secretary or the Secretary of Health, Education, and 

Welfare may reasonably require from time to time to enable him 

to perform his functions under this Act. The Secretary or the Secretary of Health, Education, and Welfare is authorized to compile, 

analyze, and publish, either in summary or detailed form, such reports or information so obtained. Except to the extent otherwise 

specifically provided by this Act, all records, information, reports, 

findings, citations, notices, orders, or decisions required or issued 

pursuant to or under this Act may be published from time to time, 

may be released to any interested person, and shall be made available for public inspection. 

* * * * * * * 

(j) In the event of any accident or reportable event occurring in 

any coal or other mine, the operator shall notify the Secretary 

thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the 

cause or causes thereof. For purposes of the preceding sentence, the 

notification of accidents required shall be provided by the operator 

within 15 minutes of the time at which the operator realizes that 

the death of an individual at the mine, or an injury or entrapment 

of an individual at the mine which has a reasonable potential to 

cause death, has occurred, or in the case of a reportable event that 

is not required to be reported as an accident, within 1 hour of the 

time at which the operator realizes that the event has occurred. In 

the event of any accident occurring in a coal or other mine, where 

rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he 

deems appropriate to protect the life of any person, and he may, 

if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine. For the purposes of this subsection, 

a reportable event shall include—

(1) a fire not required to be reported more promptly; 

(2) a sudden change in mine atmospheric conditions in a 

sealed area; 

(3) a coal or rock outburst that causes the withdrawal of miners; or 

(4) any other event, as determined in regulations promulgated 

by the Secretary, that needs to be reported within 1 hour in 

order for the Secretary to determine if the working conditions 

in the mine are safe. 


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If the representative of the Secretary supervises and directs the rescue and recovery activities in such mine, the operator shall comply 

with the requests of the authorized representative of the Secretary 

to facilitate rescue and recovery activities including the provision of 

all equipment, personnel, and other resources required to perform 

such activities in accordance with the schedule and requirements established by the representative of the Secretary for this purpose, and 

failure of the operator to comply in this regard shall be considered 

an egregious violation of this Act. 

(k) In the event of any accident occurring in a coal or other mine, 

an authorized representative of the Secretaryø, when present,¿ 

may issue such orders as he deems appropriate to insure the safety 

of any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any 

plan to recover any person in such mine or to recover the coal or 

other mine or return affected areas of such mine to normal. 

(l) Rescue efforts for trapped miners shall not cease as long as 

there is any possibility that miners are alive, unless such efforts 

pose a serious danger to rescue or other workers, and the decision 

to cease a rescue shall be made by the Secretary’s representative. 

Thereafter, efforts to recover the remains of miners shall continue 

unless such efforts pose a serious danger to recovery workers, and 

the decision to cease such recovery efforts shall be made by the Secretary’s representative. 

CITATIONS AND ORDERS

SEC. 104. (a) * * * 

(b)(1) An operator issued a citation pursuant to subsection (a) 

shall notify the Secretary that the operator has abated the violation 

involved. If such operator fails to provide such a notice to the Secretary within the abatement time as provided for in the citation, the 

Secretary shall issue an order that requires the operator (or the 

agent of the operator) to immediately cause all persons, except those 

persons referred to in subsection (c), to be withdrawn from, and to 

be prohibited from entering, such area as the Secretary determines 

until an authorized representative of the Secretary determines that 

such violation has been abated. Notwithstanding any operator notice, no violation shall be determined to be abated until an authorized representative of the Secretary visits the site and determines 

such violation has been fully abated. øIf,¿ 

(2) If, upon any follow-up inspection of a coal or other mine, an 

authorized representative of the Secretary finds ø(1)¿ (A) that a 

violation described in a citation issued pursuant to subsection (a) 

has not been totally abated within the period of time as originally 

fixed therein or as subsequently extended, and ø(2)¿ (B) that the 

period of time for the abatement should not be further extended, 

he shall determine the extent of the area affected by the violation 

and shall promptly issue an order requiring the operator of such 

mine or his agent to immediately cause all persons, except those 

persons referred to in subsection (c), to be withdrawn from, and to 

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resentative of the Secretary determines that such violation has 

been abated. 

* * * * * * * 

(d)(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard or any provision 

of this Act, and if he also finds that, øwhile the conditions created 

by such violation do not cause imminent danger,¿ such violation is 

of such nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards or any provision of this Act, he shall include such 

finding in any citation given to the operator under this Act. If, during the same inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of any mandatory health or safety standard or any provision of this Act and 

finds such violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by 

such violation, except those persons referred to in subsection (c) to 

be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that 

such violation has been abated. 

* * * * * * * 

(e)(1) If an operator has a pattern of violations of mandatory 

health or safety standards or any provision of this Act in the coal 

or other mine which are of such nature as could have significantly 

and substantially contributed to the cause and effect of coal or 

other mine health or safety hazards, he shall be given written notice that such pattern exists. In determining whether a pattern of 

violations exists, the Secretary shall give due consideration to all 

relevant information, such as the gravity of the violations, operator 

negligence, history of violations, the number of inspection shifts the 

Secretary or her agents have spent at the operation, and the frequency of violations per number of inspection days spent at the operation. If, upon any inspection within 90 days after the issuance of 

such notice, an authorized representative of the Secretary finds any 

violation of a mandatory health or safety standard or any provision 

of this Act which could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health hazard, 

the authorized representative shall issue an order requiring the operator to cause all persons in the area affected by such violation, 

except those persons referred to in subsection (c), to be withdrawn 

from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated. 

(2) If a withdrawal order with respect to any area in a coal or 

other mine has been issued pursuant to paragraph (1), a withdrawal order shall be issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection the existence 

in such mine of any violation of a mandatory health or safety 

standard or any provision of this Act which could significantly and 


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substantially contribute to the cause and effect of a coal or other 

mine health or safety hazard. The withdrawal order shall remain 

in effect until an authorized representative of the Secretary determines that such violation has been abated. 

(3) If, upon an inspection of the entire coal or other mine, an authorized representative of the Secretary finds no violations of mandatory health or safety standards or any provision of this Act that 

could significantly and substantially contribute to the cause and effect of a coal or other mine health and safety hazard, the pattern 

of violations that resulted in the issuance of a notice under paragraph (1) shall be deemed to be terminated and the provisions of 

paragraphs (1) and (2) shall no longer apply. However, if as a result of subsequent violations, the operator reestablishes a pattern 

of violations, paragraphs (1) and (2) shall again be applicable to 

such operator. In addition, if an operator subject to paragraphs (1) 

and (2) demonstrates objective evidence that they are correcting the 

problems that gave rise to the pattern of violations, and the violation frequency rate for such operator declines significantly for a period of 180 days, the withdrawal order provisions of paragraphs (1) 

and (2) shall no longer apply. 

(4) The Secretary shall make such rules as he deems necessary 

to establish criteria for determining when a pattern of violations of 

mandatory health or safety standards or any provision of this Act 

exists. 

* * * * * * * 

PROCEDURE FOR ENFORCEMENT

SEC. 105. (a) If, after an inspection or investigation, the Secretary issues a citation or order under section 104, he shallø, within a reasonable time after the termination of such inspection or investigation,¿ notify the operator by certified mail of the civil penalty proposed to be assessed under section 110(a) for the violation 

cited and that the operator has 30 days within which to notify the 

Secretary that he wishes to contest the citation or proposed assessment of penalty. A copy of such notification shall be sent by mail 

to the representative of miners in such mine. øIf, within 30 days 

from the receipt of the notification issued by the Secretary, the operator fails to notify the Secretary that he intends to contest the 

citation or the proposed assessment of penalty, and no notice is 

filed by any miner or representative of miners under subsection (d) 

of this section within such time, the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency.¿ The operator shall, not later than 30 days from the receipt of the notification 

of a citation issued by the Secretary, notify the Secretary that the 

operator intends to contest the citation or proposed assessment of a 

penalty, and the operator shall place in escrow with the Secretary 

the amount of the proposed assessment. The Secretary shall place 

any escrow submitted by a mine operator for this purpose into an 

interest bearing account and shall release the funds to the operator, 

including interest accrued, upon the payment of any final assessment determination. If notification and proof of escrow is not provided to the Secretary, the citation and the proposed assessment of 

penalty shall be deemed a final order of the Commission and not 


hmoore on PRODPC68 with HMRPT
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subject to review by any court or agency. In the event that a mine 

operator refuses to comply with a final order of the Commission to 

pay civil monetary penalties and statutory interest, the Secretary 

shall have the authority to issue an order requiring the mine operator to cease production under such final orders of the Commission 

have been paid in full. Refusal by the operator or his agent to accept certified mail containing a citation and proposed assessment 

of penalty under this subsection shall constitute thereof within the 

meaning of this subsection. 

(b)(1)(A) * * * 

(B) In determining whether to propose a penalty to be assessed 

under section 110(b), the Secretary shall consider the operator’s 

history of previous violations, the appropriateness of such penalty 

to øthe size of the business of the operator charged¿ the combined 

size of the business of the operator and any controlling entity, whether the operator was negligent, øthe effect on the operator’s 

ability to continue in business,¿ the gravity of the violation, and 

the demonstrated good faith of the operator charged in attempting 

to achieve rapid compliance after notification of a violation. In settling cases, the Secretary shall utilize the same point system as that 

utilized to propose penalties, so as to ensure consistency in operator 

penalty assessments. 

* * * * * * * 

(c)(1) No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or other mine, or an 

injury or illness in a coal or other mine or that may be associated 

with mine employment, or because such miner, representative of 

miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified 

or is about to testify in any such preoceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act. No miner shall be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyond the normal hazards inherent 

in the operation which could reasonably be expected to cause death 

of serious physical harm before such condition or practice can be 

abated. 

(2) Any miner or applicant for employment or representative of 

miners who believes that he has been discharged, interfered with, 

or otherwise discriminated against by any person in violation of 

this subsection may, within 60 days after such violation occurs, file 

a complaint with the Secretary alleging such discrimination. Upon 

receipt of such complaint, the Secretary shall forward a copy of the 


hmoore on PRODPC68 with HMRPT
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complaint to the respondent and shall cause such investigation to 

be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary’s receipt of the complaint, 

and if the Secretary finds that such complaint was not frivolously 

brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the 

miner pending final order on the complaint. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a complaint 

with the Commission, with service upon the alleged violator and 

the miner, applicant for employment, or representative of miners 

alleging such discrimination or interference and propose an order 

granting appropriate relief. The Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, 

United States Code, but without regard to subsection (a)(3) of such 

section) and thereafter shall issue an order, based upon findings of 

fact, affirming, modifying, or vacating the Secretary’s proposed 

order, or directing other appropriate relief. No investigation or 

hearing authorized by this paragraph may be stayed to await resolution of a related grievance proceeding. Such order shall become 

final 30 days after its issuance. The Commission shall have authority in such proceedings to require a person committing a violation 

of this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest. The complaining miner, applicant, or representative of miners may persent additional evidence 

on his own behalf during any hearing held pursuant to this paragraph. 

* * * * * * * 

(e) Attorneys representing the Secretary are authorized to contact 

any miner or non-managerial employee of a mine operator for the 

purposes of carrying out the Secretary’s functions under this Act 

and no attorney representing the Secretary shall be disbarred or disciplined by any State bar or State court for making such contacts. 

No attorney representing a mine operator in a matter under this Act 

may concurrently represent individual miners in the same matter. 

* * * * * * * 

PROCEDURES TO COUNTERACT DANGEROUS CONDITIONS

SEC. 107. (a) If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger exists, such 

representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of 

the Secretary determines that such imminent danger and the conditions or practices which caused such immiment danger no longer 

exist. In addition, in the event of any violation of section 315 or section 316, or regulations issued pursuant to such sections, such representative shall determine the extent of the area of such mine 

throughout which the danger exists and issue an order requiring the 


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operator of such mine to cause all persons, except those referred to 

in section 104(c), to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the Secretary determines that the violations have been abated. The 

issuance of an order under this subsection shall not preclude the 

issuance of a citation under section 104 or the proposing of a penalty under section 110. 

* * * * * * * 

PENALTIES

SEC. 110. (a)(1) The operator of a coal or other mine in which a 

violation occurs of a mandatory health or safety standard or who 

violates any other provisions of this Act, shall be assessed a civil 

penalty by the Secretary which penalty shall not be ømore than 

$50,000 for each such violation.¿ less than $500 or more than 

$100,000 for each such violation, except that, in the case of a violation of a mandatory health or safety standard that could significantly and substantially contribute to the cause and effect of a coal 

or other mine health or safety hazard, the penalty shall not be less 

than $1,000 or more than $150,000, for each such violation. Each 

occurrence of a violation of a mandatory health or safety standard 

may constitute a separate offense. 

* * * * * * * 

(b)(1) * * * 

(2) Violations øunder¿ of subsections (a) through (h) of this section that are deemed to be flagrant may be assessed a civil penalty 

of not more than $220,000. For purposes of the preceding sentence, 

the term ‘flagrant’ with respect to a violation means a reckless or 

repeated failure to make reasonable efforts to eliminate a known 

violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. 

(c) øWhenever a corporate operator¿ Whenever a mine operator 

violates a mandatory health or øsafety standard¿ safety standard 

or requirement of this Act or knowingly violates or fails or refuses 

to comply with any order issued under this Act or any order incorporated in a final decision issued under this Act, except an order 

incorporated in a decision issued under subsection (a) section 

105(c), any director, partner, owner, officer, or agent of øsuch corporation¿ such mine operator who knowingly authorized, ordered, 

or carried out such violation, failure, or refusal shall be subject to 

the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d). 

* * * * * * * 

(i)(1) If the Secretary determines that a pattern of violations 

under section 104(e) exists, the Secretary shall assess a penalty, in 

addition to any other penalty authorized in this Act for a violation 

of such section, of not less than $50,000 nor more than $250,000. 

All operators of the mine, including any corporate owners, shall be 

jointly and severally liable for such penalty. The amount of the assessment under this paragraph shall be designed to ensure a change 

in the future conduct of the operators and corporate owners of such 

mine with respect to mine safety and health, given the overall reVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00107 Fmt 6659 Sfmt 6603 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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sources of such operators. Notwithstanding subsection (k) or section 

113, a penalty assessed by the Secretary under this paragraph may 

not be reduced by the Commission. 

(2) In addition to the authority to withdraw miners from an area 

of a coal or other mine pursuant to section 104(e), the Secretary 

shall withdraw all miners from the entire mine when any pattern 

of violations has been determined to exist until such time as the Secretary certifies that all identified violations have been corrected and 

the operator has agreed to abide by a written plan approved by the 

Mine Safety and Health Administration to ensure that such a pattern of conduct will not recur. 

ø(i)¿ (j) The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider the operator’s history of previous violations, the appropriateness of such penalty to øthe size of 

the business of the operator charged¿ the combined size of the business of the operator and any controlling entity, whether the operator was negligent, øthe effect on the operator’s ability to continue 

in business,¿ the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. In proposing civil penalties under this Act, the Secretary may rely upon a summary review of the information available to him and shall not be required 

to make findings of fact concerning the above factors. In any review 

requested by a mine operator, or in settling cases, the Commission 

shall utilize the same point system as that developed by the Secretary for proposed assessments so as to ensure consistency in operator penalty assessments. 

ø(j)¿ (k) Civil penalties owed under this Act shall be paid to the 

Secretary for deposit into the Treasury of the United States and 

shall accrue to the United States and may be recovered in a civil 

action in the name of the United States brought in the United 

States district court for the district where the violation occurred or 

where the operator has its principal office. Interest at the rate of 

8 percent per annum shall be charged against a person on any final 

order of the Commission, or the court. Interest shall begin to accrue 30 days after the issuance of such order. 

ø(k)¿ (l) No proposed penalty which has been contested before 

the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission. No 

penalty assessment which has become a final order of the Commission shall be compromised, mitigated, or settled except with the approval of the court. 

ø(l)¿ (m) The provisions of this section shall not be applicable 

with respect to title IV of this Act. 

(n) CIVIL PENALTY FOR INTERFERENCE OR DISCRIMINATION.—Any 

operator who is found to be in violation of section 105(c), or in violation of section 103(a) (as amended by this Act) shall be subject to 

a civil penalty of not less than $10,000 nor more than $100,000 for 

each occurrence of such violation. 

* * * * * * * 


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MANDATORY HEALTH AND SAFETY TRAINING

SEC. 115. (a) * * * 

* * * * * * * 

(e)(1) * * * 

(2)(A) * * * 

(B) Such regulations shall provide for the following: 

(i) * * * 

* * * * * * * 

(v) The provision of uniform credentials to mine rescue team 

members, support personnel, or vehicles for immediate access to 

any mine site. 

(vi) The plans required at each mine to ensure coordination 

with local emergency response personnel and to ensure that 

such personnel receive adequate training to offer necessary assistance to mine rescue teams in the event such assistance is requested. Such local emergency response personnel shall not perform the duties of any mine rescue team. 

(vii) Requirements to ensure that operators are prepared to 

facilitate the work of mine rescue teams during an emergency 

by— (I) storing necessary equipment not brought on site by 

mine rescue teams in locations readily accessible to mine 

rescue teams; 

(II) providing mine rescue teams with a parking and 

staging area adequate for their needs; 

(III) identifying a space appropriate for coordinating 

emergency communications with the mine rescue team; and 

(IV) identifying and maintaining separate spaces for 

family members, community members, and press to assemble during an emergency so as to facilitate communications 

with these groups while ensuring the efforts of the mine rescue teams are not hindered. 

* * * * * * * 

SEC. 117. EMERGENCY PREPAREDNESS PLAN. 

Not later than 6 months of the enactment of the S–MINER Act, 

the Secretary shall establish and disseminate guidelines for rescue 

operations that will: (1) establish clear lines of authority within the 

agency for such operations; (2) establish clear lines of demarcation 

so private sector and State responders can properly implement their 

responsibilities; (3) be appropriate for rescue in various types of conditions reasonably likely to be encountered in the United States, including such factors as the depth of the mining, ground stability, 

ground slope, remoteness from major roads, surface ownership and 

access problems, and the availability of necessary communications 

linkages. The Secretary shall consult with States, rescue teams and 

other responders in developing such guidelines, and shall update 

them from time to time based upon experience. 

SEC. 118. FAMILY LIAISONS REQUIREMENT. 

The Secretary shall—

(1) designate a full-time permanent employee of the Mine 

Safety and Health Administration to serve as a Family Liaison, 

who shall, at least in instances where multiple miners are 


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trapped, severely injured or killed, act as the primary communication with the families of the miners concerning all aspects 

of the rescue operations, including the location or condition of 

miners, and assist the families in getting answers to their questions, and otherwise serve as a liaison to the families, and provide for the temporary reassignment of other personnel who 

may be required to assist the Family Liaison in connection with 

a particular incident; 

(2) require the Mine Safety and Health Administration to be 

as responsive as possible to requests from the families of such 

miners for information relating to the mine accident, and waive 

any fees required for the production of documents pursuant to 

5 U.S.C. 552(a)(3) in connection with a request from a family 

member, or authorized representative of miners, for documents 

relating to a mine fatality, notwithstanding any conditions for 

fee waivers law that may otherwise be imposed by law; and 

(3) designate a highly qualified representative of the Secretary with experience in public communications to be present 

at mine accident sites where rescues are in progress during the 

entire duration of such rescues, to serve as the primary communicator with the press and the public concerning all aspects of 

the rescue operations, including the location or condition of 

miners. 

* * * * * * * 

TITLE II—INTERIM MANDATORY HEALTH STANDARDS 

* * * * * * * 

øDUST STANDARD AND RESPIRATORY EQUIPMENT

øSEC. 202. (a) Each operator of a coal mine shall take accurate 

samples of the amount of respirable dust in the mine atmosphere 

to which each miner in the active workings of such mine is exposed. Such samples shall be taken by any device approved by the 

Secretary and the Secretary of Health, Education, and Welfare and 

in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretaries shall prescribe in the 

Federal Register within sixty days from the date of enactment of 

this Act and from time to time thereafter. Such samples shall be 

transmitted to the Secretary in a manner established by him, and 

analyzed and recorded by him in a manner that will assure application of the provisions of section 104(i) of this Act when the applicable limit on the concentration of respirable dust required to be 

maintained under this section is exceeded. The results of such samples shall also be made available to the operator. Each operator 

shall report and certify to the Secretary at such intervals as the 

Secretary may require as to the conditions in the active workings 

of the coal mine including, but not limited to, the average number 

of working hours worked during each shift, the quantity and velocity of air regularly reaching the working faces, the method of mining, the amount and pressure of the water, if any, reaching the 

working faces, and the number, location, and type of sprays, if any, 

used. 

ø(b) Except as otherwise provided in this subsection—


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ø(1) Effective on the operative date of this title, each operator shall continuously maintain the average concentration of 

respirable dust in the mine atmosphere during each shift to 

which each miner in the active workings of such mine is exposed at or below 3.0 milligrams of respirable dust per cubic 

meter of air. 

ø(2) Effective three years after the date of enactment of this 

Act, each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere during 

each shift to which each miner in the active workings of such 

mine is exposed at or below 2.0 milligrams of respirable dust 

per cubic meter of air. 

ø(3) Any operator who determines that he will be unable, 

using available technology, to comply with the provisions of 

paragraph (1) of this subsection, or the provisions of paragraph 

(2) of this subsection, as appropriate, may file with the Panel, 

no later than sixty days prior to the effective date of the applicable respirable dust standard established by such paragraphs, 

an application for a permit for noncompliance. If, in the case 

of an application for a permit for noncompliance with the 3.0 

milligram standard established by paragraph (1) of this subsection, the application satisfies the requirements of subsection 

(c) of this section, the Panel shall issue a permit for noncompliance to the operator. If, in the case of an application for a permit for noncompliance with the 2.0 milligram standard established by paragraph (2) of this subsection, the application satisfies the requirements of subsection (c) of this section and the 

Panel determines that the applicant will be unable to comply 

with such standard, the Panel shall issue to the operator a permit for noncompliance. 

ø(4) In any case in which an operator, who has been issued 

a permit (inluding a renewal permit) for noncompliance under 

this section, determines, not more than ninety days prior to the 

expiration date of such permit, that he still is unable to comply 

with the standard established by paragraph (1) of this subsection or the standard established by paragraph (2) of this 

subsection, as appropriate, he may file with the Panel an application for renewal of the permit. Upon receipt of such application, the Panel, if it determines, after all interested persons 

have been notified and given an opportunity for a public hearing under section 5 of this Act, that the application is in compliance with the provisions of subsection (c) of this section, and 

that the applicant will be unable to comply with such standard, may renew the permit. 

ø(5) Any such permit or renewal thereof so issued shall be 

in effect for a period not to exceed one year and shall entitle 

the permittee during such period to maintain continuously the 

average concentration of respirable dust in the mine atmosphere during each shift in the working places of such mine to 

which the permit applies at a level specified by the Panel, 

which shall be at the lowest level which the application shows 

the conditions, techology applicable to such mine, and other 

available and effective control techniques and methods will 

permit, but in no event shall such level exceed 4.5 milligrams 

of dust per cubic meter of air during the period when the 3.0 


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milligram standard is in effect, or 3.0 milligrams of dust per 

cubic meter of air during the period when the 2.0 milligram 

standard is in effect. 

ø(6) No permit or renewal thereof for noncompliance shall 

entitle any operator to an extension of time beyond eighteen 

months from the date of enactment of this Act to comply with 

the 3.0 milligram standard established by paragraph (1) of this 

subsection, or beyond seventy-two months from the date of enactment of this Act to comply with the 2.0 milligram standard 

established by paragraph (2) of this subsection. 

ø(c) Any application for an initial or renewal permit made pursuant ot this section shall contain—

ø(1) a representation by the applicant and the engineer conducting the survey referred to in paragrah (2) of this subsection that the applicant is unable to comply with the standard applicable under subsection (b)(1) or (b)(2) of this section 

at specified working places because the technology for reducing 

the concentration of respirable dust at such places is not available, or because of the lack of other effective control techniques 

or methods, or because of any combination of such reasons; 

ø(2) an identification of the working places in such mine for 

which the permit is requested; the results of an engineering 

survey by a certified engineer of the respirable dust conditions 

of each working place of the mine with respect to which such 

application is filed and the ability to reduce such dust to the 

level required to be maintained in such place under this section; a description of the ventilation system of the mine and its 

capacity; the quantity and velocity of air regularly reaching the 

working faces; the method of mining; the amount and pressure 

of the water, if any, reaching the working faces; the number, 

location, and type of sprays, if any; action taken to reduce such 

dust; and such other information as the Panel may require; 

and 

ø(3) statements by the applicant and the engineer conducting 

such survey, of the means and methods to be employed to 

achieve compliance with the applicable standard, the progress 

made toward achieving compliance, and an estimate of when 

compliance can be achieved. 

ø(d) Beginning six months after the operative date of this title 

and from time to time thereafter, the Secretary of Health, Education, and Welfare shall establish, in accordance with the provisions of section 101 of this Act, a schedule reducing the average 

concentration of respirable dust in the mine atmosphere during 

each shift to which each miner in the active workings is exposed 

below the levels established in this section to a level of personal exposure which will prevent new incidences of respiratory disease 

and the further development of such disease in any person. Such 

schedule shall specify the minimum time necessary to achieve such 

levels taking into consideration present and future advancements 

in technology to reach these levels. 

ø(e) References to concentrations of respirable dust inthis title 

mean the average concentration of respirable dust measured with 

a device approved by the Secretary and the Secretary of Health, 

Education, and Welfare. 


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ø(f) For the purpose of this title, the term ‘‘average concentration’’ means a determination which accurately represents the atmospheric conditions with regard to respirable dust to which each 

miner in the active workings of a mine is exposed (1) as measured, 

during the 18 month period following the date of enactment of this 

Act, over a number of continuous production shifts to be determined by the Secretary and the Secretary of Health, Education, 

and Welfare, and (2) as measured thereafter, over a single shift 

only, unless the Secretary and the Secretary of Health, Education, 

and Welfare find, in accordance with the provisions of section 101 

of this Act, that such single shift measurement will not, after applying valid statistical techniques to such measurement, accurately 

represent such atmospheric conditions during such shift. 

ø(g) The Secretary shall cause to be made such frequent spot inspections as he deems appropriate of the active workings of coal 

mines for the purpose of obtaining compliance with the provisions 

of this title. 

ø(h) Respiratory equipment approved by the Secretary and the 

Secretary of Health, Education, and Welfare shall be made available to all persons whenever exposed to concentrations of respirable dust in excess of the levels required to be maintained under 

this Act. Use of respirators shall not be substituted for environmental control measures in the active workings. Each operator 

shall maintain a supply of respiratory equipment adequate to deal 

with occurrences of concentrations of respirable dust in the mine 

atmosphere in excess of the levels required to be maintained under 

this Act.¿ 

SEC. 202. DUST STANDARD AND RESPIRATORY EQUIPMENT. 

(a)(1) Effective on the date of enactment of the S–MINER Act, 

each coal mine operator shall continuously maintain the concentration of respirable dust in the mine atmosphere during each shift to 

which each miner in the active workings of such mine is exposed at 

or below a time-weighted average of 1.00 milligrams of respirable 

dust per cubic meter of air averaged over 10 hours or its dose-equivalent for shorter or longer period of time. For purposes of this paragraph, ‘‘a dose-equivalent’’ means the amount of dust that a miner 

would inhale during his work shift as if he were working for 10 

hours, and the term ‘‘shift’’ means portal-to-portal for underground 

coal mines and ‘‘bank to bank’’ for other coal mines. 

(2) At regular intervals to be prescribed by the Secretary and the 

Secretary of Health and Human Services, the Secretary will take accurate samples of the amount of respirable dust in the coal mine atmosphere to which each miner in the active workings of such mine 

is exposed in order to determine compliance with the requirements 

of paragraph (a)(1) of this section. In addition, the Secretary shall 

cause to be made such frequent spot inspections as he deems appropriate of the active workings of coal mines for the purpose of obtaining compliance with the provisions of this title. All samples by the 

Secretary shall be taken by a personal dust monitor that measures, 

records and displays in real time the concentration of respirable 

dust to which the miner wearing the device is exposed, and shall include the sampling of areas, occupations or persons. For the purposes of determining compliance with the exposure limit for respirable dust, only a single sample shall be required to determine 


hmoore on PRODPC68 with HMRPT
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non-compliance, and there shall be no adjustment for measurement 

error in the measured level of respirable dust. 

(3) At intervals established by the Secretary, each operator of a 

coal mine shall take accurate samples of the amount of respirable 

dust in the mine atmosphere to which each miner in the active 

workings of such mine is exposed to identify sources of exposure so 

that the operator can take corrective action and assure that the exposure of each mine is below the exposure limit. Under the provisions of this Act, all such samples shall be taken by a personal dust 

monitor that measures, records and displays the concentration of 

respirable dust to which the miner wearing the device is exposed, 

and may include samples of less than a full shift. The results of 

such sampling shall be transmitted to the Secretary in a manner established by him, and recorded by him in a manner that will assure 

application of the provisions of this section of the Act. 

(4) Each miner shall be equipped with a personal dust monitor 

that measures, records and displays in real time the concentration 

of respirable dust to which the miner wearing the device is exposed. 

Each miner shall be permitted to adjust his work activities whenever necessary to keep his exposure to respirable coal dust, as measured, recorded and displayed by such device, at all times at or 

below the permitted concentration. 

(b) Effective on the date of enactment of the S–MINER Act, each 

operator of a coal or other mine shall continuously maintain the 

concentration of respirable silica dust in the mine atmosphere during each shift to which each miner in the active workings of such 

mine is exposed at or below a time-weighted average of 0.05 milligrams of respirable silica dust per cubic meter of air averaged over 

ten hours or its dose-equivalent for shorter or longer period of time. 

For the purposes of this paragraph, compliance shall be determined 

by the sampling of areas, occupations or persons, only a single sample shall be required to determine non-compliance, and there shall 

be no adjustment for measurement error in the measured level of 

respirable silica dust. For the purposes of this paragraph, a ‘‘doseequivalent’’ means the amount of dust that a miner would inhale 

during his work shift as if he were working for 10 hours, and the 

term ‘‘shift’’ means portal-to-portal for underground mines and 

‘‘bank to bank’’ for other mines. 

(c) Respiratory equipment approved by the Secretary and the Secretary of Health and Human Services shall be made available to all 

persons whenever exposed to concentrations of respirable dust or 

silica in excess of the levels required to be maintained under this 

section. Use of respirators shall not be substituted for environmental 

control measures in the active workings. Each operator shall maintain a supply of respiratory equipment adequate to deal with occurrences of concentrations of respirable dust and silica in the mine atmosphere in excess of the levels required to be maintained under 

this section. 

(d) Each operator shall report and certify to the Secretary at such 

intervals as the Secretary may require as to the conditions in the 

active workings of a coal mine, including, the average number of 

working hours worked during each shift, the quantity and velocity 

of air regularly reaching the working faces, the method of mining, 


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the amount and pressure of the water, if any, reaching the working 

faces, and the number, location, and type of sprays, if any, used. 

* * * * * * * 

øDUST STANDARD WHEN QUARTZ IS PRESENT

øSEC. 205. In coal mining operations where the concentration of 

respirable dust in the mine atmosphere of any working place contains more than 5 per centum quartz, the Secretary of Health, Education, and Welfare shall prescribe an appropriate formula for determining the applicable respirable dust standard under this title 

for such working place and the Secretary shall apply such formula 

in carrying out his duties under this title.¿ 

* * * * * * * 

SEC. 207. APPLICATION TO UNDERGROUND METAL AND NONMETAL 

MINES. 

(a) CONVEYOR BELTS.—The regulations to be issued pursuant to 

section 311(h) concerning conveyor belts shall also provide that all 

conveyor belts in use in underground metal and nonmetal mines are 

to be replaced, on the same schedule, with belts that can meet the 

flame resistance requirements recommended by the National Institute for Occupational Safety and Health, and which limit smoke 

and toxic emissions. Any conveyor belt installed in an underground 

metal or nonmetal mine after the date of enactment of the S–

MINER Act shall meet such requirements. 

(b) SEALS.—The regulations to be issued pursuant to section 

303(z)(2) concerning the approval, design, construction, inspection, 

maintenance and monitoring of underground coal mine seals shall 

make the same rules applicable to seals in underground metal and 

nonmetal mines which have been classified by the Secretary as a 

category I, III, or V mine pursuant to section 57.22003 of title 30, 

Code of Federal Regulations, because they naturally emit defined 

quantities of methane. 

(c) ADVISORY COMMITTEE.—Promptly after the date of enactment 

of the S–MINER Act The Secretary shall establish an advisory committee to provide recommendations as to the need to revise the regulations applicable to underground metal and nonmetal mines to ensure that miners in such mines are as protected in emergency situations as will be underground coal miners following the full implementation of the MINER Act, the provisions of the S–MINER Act, 

and related actions by the Secretary. The advisory committee shall 

be established pursuant to the Advisory Committee Act, and shall 

provide recommendations to the Secretary and to Congress not later 

than 21 months after the date of enactment of this Act, including 

recommendations as to any action by Congress that could facilitate 

the goal of providing equivalent protections to miners in underground metal and nonmetal mines. 

TITLE III—INTERIM MANDATORY SAFETY STANDARDS FOR 

UNDERGROUND COAL MINES 

* * * * * * * 


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øROOF SUPPORT¿ ROOF AND RIB SUPPORT, BARRIER REDUCTION AND

PILLAR EXTRACTION, SPECIAL ATTENTION TO DEEP MINING

SEC. 302. (a) Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof control system of 

each coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherwise 

controlled adequately to protect persons from falls of the roof or 

ribs. The Secretary shall by regulation ensure the appropriate use 

of roof screen in belt entries, travelroads, and designated intake and 

return escapeways in accordance with the requirements of subsection (g). A roof control plan and revisions thereof suitable to the 

roof conditions and mining system of each coal mine and approved 

by the Secretary shall be adopted and set out in printed form within sixty days after the operative date of this title. The plan shall 

show the type of support and spacing approved by the Secretary. 

Such plan shall be reviewed periodically, at least every six months 

by the Secretary, taking into consideration any falls of roof or ribs 

or inadequacy of support of roof or ribs. No person shall proceed 

beyond the last permanent support unless adequate temporary support is provided or unless such temporary support is not required 

under the approved roof control plan and the absence of such support will not pose a hazard to the miners. A copy of the plan shall 

be furnished the Secretary or his authorized representative and 

shall be available to the miners and their representatives. 

* * * * * * * 

(g) Where screening is required, at least forty percent of the width 

of the exposed roof shall be screened. Screening to meet the requirements of this section must have a load bearing capacity at least 

equivalent to a load of 2.5 tones between bolts on a 4 foot pattern. 

(h)(1) An operator shall be required to have a current and approved barrier reduction or pillar extraction plan, or both, before 

performing such activities. The Secretary shall only approve a barrier reduction or pillar extraction plan if it provides adequate protection and minimizes the risks for miners engaged in the activity, 

reflecting appropriate engineering analysis, computer simulations, 

and consultations with technical experts in the agency, in the National Institute for Occupational Safety and Health, and in the Bureau of Land Management for any mines leasing Federal coal resources, and only if the plan complies with any specific requirements that may be adopted by the Secretary for barrier reduction 

or pillar extraction activities including requirements related to the 

depth of the mine, geology of the mine, mine height and methods, 

and emergency response capabilities. 

(2) A copy of a proposed barrier reduction or pillar extraction 

plan, or both, shall be provided to the authorized representative of 

miners at least 10 days prior to submission to the Secretary for approval. The authorized representative of miners may provide comments to the Secretary who shall respond thereto. 

(3) The Secretary shall establish a special internal review process 

for operator plans to protect miners from the risks addressed by this 

section when working at depths of more than 1500 feet and in other 

mines with a history of mountain bumps. 


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(i) Not later than 1 week before the commencement of any barrier 

reduction or pillar extraction operations, the mine operator shall notify the appropriate representative of the Secretary of his intention 

to begin or resume barrier reduction or pillar extraction. The Secretary shall document such notification in writing, and shall, before 

barrier reduction or pillar extraction operations begin, take action 

to ensure that every person who will be participating in such operations is trained in the operator’s barrier reduction and/or and pillar extraction plan. The Secretary shall observe the barrier reduction or pillar extraction operations for a sufficient period of time to 

ensure that the mine operator is fully complying with the barrier reduction or pillar extraction plan. The Secretary may preclude the 

commencement of such operations or halt such operations at any 

time the safety of miners comes into question. 

VENTILATION

SEC. 303. (a) * * * 

* * * * * * * 

(c)(1) * * * 

* * * * * * * 

(4) Not later than 1 year after the date of enactment of the S–

MINER Act, the Secretary shall publish interim final regulations to 

enhance the survivability of underground mine ventilation controls. 

The Secretary shall require that stoppings be constructed using 

solid concrete blocks laid wet and sealed with an appropriate bonding agent on at least the side subjected to the velocity of the intake 

air coursing through the entry, except that in the case of stoppings 

constructed during barrier reduction and pillar removal operations, 

such stoppings may be constructed using hollow block and an appropriate bonding agent. 

(d)(1) * * * 

* * * * * * * 

(3) Not later than 90 days after the date of enactment of the S–

MINER Act, all mine operators shall be required to implement a 

communication program at each of such operators’ facilities to ensure that each person entering the operation is made aware at the 

start of that person’s shift of the current conditions of the mine in 

general and of that person’s specific worksite in particular. In an 

effort to facilitate these communications, all agents of the operator 

who are responsible for ensuring the safe and healthful working 

conditions at the mine, including mine foremen, assistant mine foremen, and mine examiners, shall, upon exiting the mine or workplace, communicate with those replacing them on duty to verbally 

update them on the conditions they observed during their shift, including any conditions that are abnormal or hazardous. Prior to entering the mine or other workplace the on-coming agent of the operator shall meet with all members of the crew they are responsible 

for and inform them of the general conditions at the operation and 

in their specific work area. This process shall be completed prior to 

the start of each shift at the operation and recorded in a book designated for that purpose and available for inspection by all interested parties. In the event the operation is idle prior to the start of 

any shift the agent of the operator shall meet with the individual 


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or individuals who were responsible for examining the mine to obtain the necessary information. 

* * * * * * * 

(h)(1) * * * 

(2) Each miner who is working alone for part of a shift shall be 

equipped with a multi-gas detector that measures current levels of 

methane, oxygen, and carbon monoxide. 

ø(2)¿ (3) If at any time the air at any working place, when tested 

at a point not less than twelve inches from the roof, face, or rib, 

contains 1.0 volume per centum or more of methane, changes or adjustments shall be made at once in the ventilation in such mine so 

that such air shall contain less than 1.0 volume per centum of 

methane. While such changes or adjustments are underway and 

until they have been achieved, power to electric face equipment located in such place shall be cut off, no other work shall be permitted in such place, and due precautions shall be carried out 

under the direction of the operator or his agent so as not to endanger other areas of the mine. If at any time such air contains 1.5 

volume per centum or more of methane, all persons, except those 

referred to in section 104(d) of this Act, shall be withdrawn from 

the area of the mine endangered thereby to a safe area, and all 

electric power shall be cut off from the endangered area of the 

mine, until the air in such working place shall contain less than 

1.0 volume per centum of methane. 

* * * * * * * 

(y)(1) * * * 

* * * * * * * 

(3) Not later than June 20, 2008, the Secretary shall revise the 

regulations prescribed pursuant to this section to require, in any 

coal mine, regardless of the date on which it was opened, that belt 

haulage entries not be used to ventilate active working places. The 

Secretary may agree to a modification of this requirement, pursuant 

to the procedures of section 101(c), if and only if—

(A) the mine operator establishes to the satisfaction of the 

Secretary that significant safety constraints require such usage; 

and 

(B) the mine operator agrees to comply with criteria established by the Secretary which shall, at a minimum, include the 

conditions recommended by the Technical Study Panel established under section 514. 

(4) Plans that have been approved by the Secretary prior to the 

date of enactment of the S–MINER Act that permit the use of beltair to ventilate active working places in a mine are permitted to remain in use to complete current mining up until the date of 

issuance of the regulation required pursuant to paragraph (3). 

(z)(1) * * * 

* * * * * * * 

(4)(A) The Secretary shall inspect all seals under construction 

after the date of enactment of the S–MINER Act, during at least 

part of their construction, to ensure the mine operator is complying 

with the approved seal plan, and shall develop an inspection protocol for this purpose. 


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(B) Not later than 3 months of the date of enactment of the S– MINER Act, the Secretary shall issue final rules regarding approval, design, construction, inspection, maintenance and monitoring of underground coal mine seals which shall meet the requirements of this paragraph. Except as otherwise provided by this paragraph, these regulations shall implement the most recent recommendations of the National Institute of Occupational Safety and 

Health concerning seal design, construction, inspection, maintenance and monitoring. The regulations shall also provide that all 

seals in a mine shall be monitored if they are not designed or installed to withstand a constant total pressure of 240 pounds per 

square inch, using a static structural analysis. Monitoring of seals 

shall be done by continuous monitoring devices within one year of 

the date of enactment of this Act, and prior thereto by qualified personnel at such intervals as the Secretary determines are adequate 

to ensure safety. The Secretary shall require mine operators to utilize a tamper-resistant method to retain records of all such monitoring and ensure they are available for examination and 

verification by the agency. Monitoring of seals shall be done both 

by— (i) sampling through at least 1 seal in each bank of seals; and 

(ii) for new seals, unless infeasible due to property rights, 

sampling through a sufficient number of boreholes from the 

surface to the sealed areas underground to effectively determine 

the gas concentrations within the area. 

(C) In addition, the regulations shall provide that— (i) seal sampling pipes shall be composed of materials that 

minimize the risk of transmitting any electrical charge, and no 

conductive materials may be used to line boreholes within three 

feet of the surface; 

(ii) an action plan for sealing and repair be established that 

will, among any other requirements, include specific actions the 

mine operator will take to protect miners during the critical 

time period immediately after sealing or repair takes place, and 

which shall be reviewed by personnel from the Mine Safety and 

Health Administration who have the required expertise prior to 

approval; and 

(iii) methane pressures behind any seal required to be monitored shall be maintained in such a manner as ensure that 

normal pressure variations that can be reasonably anticipated 

in the area of the seal do not bring the methane-air mixture 

into an appropriate safety range surrounding the known explosive range of such mixtures. 

COMBUSTIBLE MATERIALS AND ROCK DUSTING

SEC. 304. (a) * * * 

* * * * * * * 

(d) Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a 

coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust 

shall be not less than 65 per centum, but the incombustible content 

in the return aircourses shall be no less than 80 per centum. 

Where methane is present in any ventilating current, the per cenVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00119 Fmt 6659 Sfmt 6601 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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tum of incombustible content of such combined dusts shall be increased 1.0 and 0.4 per centum for each 0.1 per centum of methane 

where 65 and 80 per centum, respectively, of incombustibles are required. Not later than June 15, 2009, the National Institute for Occupational Safety and Health shall issue recommendations as to 

whether changes to these requirements are necessary to ensure an 

equivalent level of protection in light of any changes to the size and 

composition of coal dust since these requirements were established, 

and the Secretary of Labor shall take appropriate action, including 

the issuance of an emergency temporary standard if warranted, to 

respond to these recommendations. 

* * * * * * * 

SEC. 311. (a) * * * 

* * * * * * * 

(h) On and after the operative date of this title, all conveyors 

belts acquired for use underground shall meet the requirements to 

be established by the Secretary for flame-resistant conveyor belts. 

Not later than January 31, 2008, the Secretary shall publish interim final regulations to ensure that all conveyor belts in use in underground coal mines are replaced no later than December 31, 2012, 

with belts that can meet the flame resistance requirements recommended by the National Institute for Occupational Safety and 

Health, and which limit smoke and toxic emissions. Any conveyor 

belt installed in a coal mine after the date of enactment of the S– MINER Act shall meet such requirements. 

* * * * * * * 

COMMUNICATIONS AND EMERGENCY RESPONSE PLANS

SEC. 316. (a) * * * 

(b) ACCIDENT PREPAREDNESS AND RESPONSE.—

(1) * * * 

(2) RESPONSE AND PREPAREDNESS PLAN.—

(A) * * * 

* * * * * * * 

(E) PLAN CONTENT-GENERAL REQUIREMENTS.—To be approved under subparagraph (C), an accident response plan 

shall include the following: 

(i) * * * 

* * * * * * * 

(vi) Not later than June 15, 2008, the Secretary shall 

issue interim final regulations, consistent with the design criteria recommended by National Institute for 

Occupational Safety and Health in its report pursuant 

to section 13(b)(1) of the MINER Act, and subject to the 

requirements of the next sentence, requiring each emergency response plan to provide for the installation of 

portable rescue chambers meeting National Institute 

for Occupational Safety and Health design criteria, or 

refuge shelters carved out of the mine workings and 

sealed with bulkheads meeting National Institute for 

Occupational Safety and Health design criteria, or 

other refuge designs recommended by National InstiVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00120 Fmt 6659 Sfmt 6603 E:\HR\OC\HR457.XXX HR457

hmoore on PRODPC68 with HMRPT
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tute for Occupational Safety and Health that provide 

miners with equivalent or better protection, in the 

working areas of underground coal mines within 60 

days following plan approval. In addition, a plan shall 

provide for the maintenance of a mobile emergency 

shelter within 500 feet of the nearest working face in 

each working section of an underground coal mine. The 

plan shall also set forth the operator’s plans for assisting the Secretary in the implementation of section 118. 

(F) PLAN CONTENT-SPECIFIC REQUIREMENTS.—

(i) * * * 

(ii) POST ACCIDENT COMMUNICATIONS.—øNot later 

than¿ 

(I) Not later than 120 days after the enactment 

of the S–MINER Act, a plan shall, to be in approved status, provide for a post accident communication system between underground and surface 

personnel, and for an electronic tracking system 

permitting surface personnel to determine the location of any persons trapped underground, that utilizes a system at least as effective as a ‘‘leaky feeder’’ or wireless mesh type communication and 

tracking system currently in use in the industry. 

These systems shall be enhanced physically, electronically, or redundantly, to improve their survivability in the event of a mine disaster. In addition, 

to be in approved status, an emergency response 

plan must be revised promptly to incorporate new 

technology which the National Institute for Occupational Safety and Health certifies can be added 

to the existing system to improve its ability to facilitate post-accident communication with or tracking of miners. No miner shall be disciplined based 

on information obtained from an electronic communications and tracking system. 

(II) Not later than 3 years after the date of enactment of the Mine Improvement and New Emergency Response Act of 2006, a plan shall, to be approved, provide for post accident communication 

between underground and surface personnel via a 

wireless two-way medium, and provide for an electronic tracking system permitting surface personnel to determine the location of any persons 

trapped underground or set forth within the plan 

the reasons such provisions can not be adopted. 

Where such plan sets forth the reasons such provisions can not be adopted, the plan shall also set 

forth the operator’s alternative means of compliance. Such alternative shall approximate, as closely as possible, the degree of functional utility and 

safety protection provided by the wireless two-way 

medium and tracking system referred to in this 

subpart. 

* * * * * * * 


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MISCELLANEOUS

SEC. 317. (a) * * * 

* * * * * * * 

(u) Not later than May 1, 2008, an operator of an underground 

mine shall install atmospheric monitoring systems in all underground areas where miners normally work and travel that provide 

real-time information regarding carbon monoxide levels, and that 

can, to the maximum extent possible, withstand explosions and 

fires. 

* * * * * * * 

TITLE V—ADMINISTRATION 

* * * * * * * 

INSPECTORS; QUALIFICATIONS: TRAINING

SEC. 505. øThe Secretary¿ (a) The Secretary may, subject to the 

civil service laws, appoint such employees as he deems requisite for 

the administration of this Act and prescribe their duties. Persons 

appointed as authorized representatives of the Secretary shall be 

qualified by practical experience in mining or by experience as a 

practical mining engineer or by education: Provided, however, That, 

to the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be so selected unless 

he has the basic qualification of at least five years practical mining 

experience and in assigning mine inspectors to the inspection and 

investigation of individual mines, due consideration shall be given 

to the extent possible to their previous experience in the particular 

type of mining operation where such inspections are to be made. 

Persons appointed to assist such representatives in the taking of 

samples of respirable dust for the purpose of enforcing title II of 

this Act shall be qualified by training, experience, or education. 

The provisions of section 201 of the Revenue and Expenditure Control Act of 1968 (82 Stat. 251, 270) shall not apply with respect to 

the appointment of such authorized representatives of the Secretary or to persons appointed to assist such representatives and 

to carry out the provisions of this Act, and, in applying the provisions of such section to other agencies under the Secretary and to 

other agencies of the Government, such appointed persons shall not 

be taken into account. Such persons shall be adequately trained by 

the Secretary. The Secretary shall develop programs with educational institutions and operators designed to enable persons to 

qualify for positions in the administration of this Act. In selecting 

persons and training and retraining persons to carry out the provisions of this Act, the Secretary shall work with appropriate educational institutions, operators, and representatives of miners in 

developing and maintaining adequate programs for the training 

and continuing education of persons, particularly inspectors, and 

where appropriate, the Secretary shall cooperate with such institutions in carrying out the provisions of this section by providing financial and technical assistance to such institutions. 

(b) Within 270 days of the enactment of the S–MINER Act, the 

Secretary shall establish a Master Inspector program to ensure that 

the most experienced and skilled employees in the Nation have the 


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incentive, in terms of responsibilities and pay, to serve as mine safety and health inspectors in this Nation’s mines. 

(c) In order to ensure that the Secretary has adequate time to provide that a sufficient number of qualified and properly trained inspectors of the Mine Safety and Health Administration are in place 

before any inspectors employed as of the date of enactment of the S– MINER Act retire, any ceilings on the number of personnel that 

may be employed by the Administration with respect to mine inspectors are abolished for the 5-year period beginning on the date of enactment of such Act. 

(d) In the event that, notwithstanding the actions taken by the 

Secretary to hire and train qualified inspectors, the Secretary is 

temporarily unable, at any time during the 5-year period beginning 

on the date of enactment of the S–MINER Act, to employ the number of inspectors required to staff all district offices devoted to coal 

mines at the offices’ highest historical levels without transferring 

personnel from supervisory or plan review activities or diminishing 

current inspection resources devoted to other types of mines, the Administration is authorized to hire retired inspectors on a contractual 

basis to conduct mine inspections, and the retirement benefits of 

such retired inspectors shall not be reduced as a result of such temporary contractual employment. 

(e) During the 5-year period beginning on the date of enactment 

of the S–MINER Act, the Secretary shall issue a special report to 

the appropriate committees of Congress each year, or at such more 

frequent intervals as the Secretary or any such committee may consider appropriate, providing information about the actions being 

taken under this section, the size and training of the inspector workforce at the Mine Safety and Health Administration, the level of enforcement activities, and the number of requests by individual operators of mines for compliance assistance. 

* * * * * * * 

SEC. 516. OFFICE OF MINER OMBUDSMAN. 

(a) ESTABLISHMENT OF MINER OMBUDSMAN.—There shall be established, within the Office of the Inspector General of the Department of Labor, the position of Miner Ombudsman. The President, 

by and with the advice and consent of the Senate, shall appoint an 

individual with expertise in mine safety and health to serve as the 

Miner Ombudsman. The Ombudsman shall have authority to hire 

such personnel as are required to administer his duties in accordance with applicable law, provided they meet any general requirements for employment within the Office of the Inspector General. 

(b) DUTIES.—The Miner Ombudsman shall—

(1) recommend to the Secretary appropriate practices to ensure the confidentiality of the identity of miners, and the families or personal representatives of the miners, who contact mine 

operators, authorized representatives of the miners, the Mine 

Safety and Health Administration, the Department of Labor, or 

others with information about mine accidents, incidents, injuries, illnesses, possible violations of mandatory health or safety 

standard violations or plans or other mine safety and health 

concerns; 

(2) establish a toll-free telephone number and appropriate 

Internet website to permit individuals to confidentially report 


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mine accidents, incidents, injuries, illnesses, possible violations 

of mandatory health or safety standard violations or plans or 

other mine safety and health concerns, and provide plastic wallet cards, refrigerator magnets, or similar devices to all mine 

operators, which mine operators shall distribute to all current 

and new miners, with contact information for such confidential 

reports, and also provide supplies of these devices to miner communities; 

(3) collect and forward information concerning accidents, incidents, injuries, illnesses, possible violations of mandatory 

health or safety standard violations or plans or other mine safety and health concerns to the appropriate officials of the Mine 

Safety and Health Administration for investigation, or to appropriate officials within the Office of Inspector General for investigation or audit, or both, while establishing practices to protect the confidentiality of the identify of those who provide such 

information to the Ombudsman; and 

(4) monitor the Secretary of Labor’s efforts to promptly act 

upon complaints filed by miners under section 105(c) of the Act 

or pursuant to other programs administered by the Department 

to protect whistleblowers, and report to Congress any recommendations that would enhance such rights or protections. 

(c) AUTHORITY.—All complaints of operator violations of any section of this Act or regulations prescribed under this Act that are reported to the Secretary shall be forwarded to the Ombudsman for 

logging and appropriate action, except that this requirement shall 

be implemented in such a way as to avoid interference in any way 

with the ability of the Assistant Secretary for Mine Safety and 

Health to take prompt actions that may be required in such situations. This shall include complaints submitted in writing, via any 

phone system, or orally, along with all relevant information available regarding the complainant. All such information shall be retained in a confidential manner pursuant to the Privacy Act of 

1974. The Ombudsman shall use such information to monitor the 

actions taken to ensure that miners’ complaints are addressed in a 

timely manner and in compliance with the appropriate statutes and 

regulations. The Ombudsman shall refer to appropriate personnel 

within the Office of the Inspector General for further review any 

case which he determines was not handled in such fashion. 

(d) AUTHORIZATION OF APPROPRIATIONS.—There are hereby authorized to be appropriated to the Ombudsman such sums as may 

be required for the implementation of his duties out of the sums otherwise made available to the Mine Safety and Health Administration for its activities. 

SECTION 22 OF THE OCCUPATIONAL SAFETY AND 

HEALTH ACT OF 1970 

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

SEC. 22. (a) * * * 

* * * * * * * 

(h) OFFICE OF MINE SAFETY AND HEALTH.—


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(1) * * * 

* * * * * * * 

(5) INTERAGENCY WORKING GROUP.—

(A) ESTABLISHMENT.—The Director of the Institute, in 

carrying out paragraph (3)(D) shall establish an interagency working group to share technology and technological research and developments that could be utilized to 

enhance mine safety and accident response including advanced drilling technologies, and any special technologies 

required for safety or rescue in mining more than 1,500 feet 

in depth. 

* * * * * * * 

MINER ACT 

* * * * * * * 

øSEC. 7. REQUIREMENT CONCERNING FAMILY LIAISONS. 

øThe Secretary of Labor shall establish a policy that—

ø(1) requires the temporary assignment of an individual Department of Labor official to be a liaison between the Department and the families of victims of mine tragedies involving 

multiple deaths; 

ø(2) requires the Mine Safety and Health Administration to 

be as responsive as possible to requests from the families of 

mine accident victims for information relating to mine accidents; and 

ø(3) requires that in such accidents, that the Mine Safety 

and Health Administration shall serve as the primary communicator with the operator, miners’ families, the press and the 

public.¿ 

SEC. ø8¿ 7. PENALTIES. 

(a) * * * 

* * * * * * * 

SEC. ø9¿ 8. FINE COLLECTIONS. 

Section 108(a)(1)(A) of the Federal Mine Safety and Health Act 

of 1977 (30 U.S.C. 818(a)(1)(A)) is amended by inserting before the 

comma, the following: ‘‘, or fails or refuses to comply with any order 

or decision, including a civil penalty assessment order, that is 

issued under this Act’’. 

* * * * * * * 

øSEC. 10. SEALING OF ABANDONED AREAS. 

øNot later than 18 months after the issuance by the Mine Safety 

and Health Administration of a final report on the Sago Mine accident or the date of enactment of the Mine Improvement and New 

Emergency Response Act of 2006, whichever occurs earlier, the Secretary of Labor shall finalize mandatory heath and safety standards relating to the sealing of abandoned areas in underground 

coal mines. Such health and safety standards shall provide for an 

increase in the 20 psi standard currently set forth in section 

75.335(a)(2) of title 30, Code of Federal Regulations.¿ 


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SEC. ø11¿ 9. TECHNICAL STUDY PANEL. 

Title V of the Federal Mine Safety and Health Act of 1977 (30 

U.S.C. 951 et seq.) is amended by adding at the end the following: 

‘‘SEC. 514. TECHNICAL STUDY PANEL. 

‘‘(a) * * * 

* * * * * * * 

SEC. ø12¿ 10. SCHOLARSHIPS. 

Title V of the Federal Mine Safety and Health Act of 1977 (30 

U.S.C. 951 et seq.), as amended by section 11, is further amended 

by adding at the end the following: 

‘‘SEC. 515. SCHOLARSHIPS. 

‘‘(a) * * * 

* * * * * * * 

SEC. ø13¿ 11. RESEARCH CONCERNING REFUGE ALTERNATIVES. 

(a) * * * 

* * * * * * * 

SEC. ø14¿ 12. BROOKWOOD-SAGO MINE SAFETY GRANTS. 

(a) * * * 

* * * * * * * 

XIII. COMMITTEE CORRESPONDENCE

None. 


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1S. 2803, the Mine Improvement New Emergency Response Act, enacted as Public Law No. 

109–236. 2 Bureau of Labor Statistics Industry Injury and Illness Data—2006. 

MINORITY VIEWS ON H.R. 2768 

INTRODUCTION

Committee Republicans strongly believe that all miners should 

work in a culture of workplace safety which ensures that each 

miner goes home to his or her family at the end of his or her shift. 

Sadly, last year, on too many days too many miners at Sago, 

Aracoma, Darby and other of our nation’s mines did not make it 

home from work. The more recent tragedy of Crandall Canyon, 

Utah in August 2007, in which six miners were trapped by a collapse and three other individuals lost their lives in rescue efforts, 

continues to demonstrate the inherent danger of mining. 

In the wake of the Sago, Aracoma, and Darby tragedies, Committee Republicans (and the majority of Committee Democrats) 

demonstrated their commitment to improving mine safety by 

strongly supporting enactment of the Mine Improvement and New 

Emergency Response (MINER) Act in the 109th Congress.1 Committee Republicans in the 110th Congress are equally committed to 

ensuring that this law is fully and robustly implemented. 

The MINER Act mandated wholesale changes to mine safety 

practices. The results of this technology-forcing act have been swift, 

despite suggestions from the Majority that the change has not been 

fast enough. Indeed, injury rate data for 2006 from the Bureau of 

Labor Statistics demonstrates that great progress in the area of 

mine safety has been made: 

Mining experienced the lowest incidence rate in 2006 among 

goods-producing industry sectors—3.5 cases per 100 full-time 

workers. In comparison, while higher than the rate for mining, 

rates for agriculture, forestry, fishing and hunting (6.0 cases), 

construction (5.9 cases), and manufacturing (6.0 cases) were 

not significantly different from one another.2

This injury rate data, though not inclusive of the fatality rate, 

indicates that miners and mine operators are not complacent about 

safety. Equally clear is that these improvements in mine safety 

could not have been made without the cooperation of all interested 

parties. Since passage of the MINER Act, organized labor, mine 

management, and the federal agency that regulates mining, the 

Mine Safety and Health Administration (MSHA), have worked together to significantly improve mine safety. 

H.R. 2768 represents a step backwards in mine safety efforts, 

and actually threatens to undermine the goals embodied in—and 

achieved by—the MINER Act. For this reason, Committee Republicans were united in their opposition to this legislation, and urge 

that it be rejected by the House of Representatives. 


hmoore on PRODPC68 with HMRPT
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3See Federal Mine Safety and Health Act, P.L. 91–173 (December 30, 1969), codified at 30 

U.S.C. § 801 et seq. The legislation was originally known as the Federal Coal Mine Health and 

Safety Act of 1969, but in 1977 was amended and its name changed to the Federal Mine Safety 

and Health Act of 1977. 

BACKGROUND: THE MINER ACT

Last year, in response to fatal mine tragedies in West Virginia 

and Kentucky, Congress passed and President Bush signed into 

law the MINER Act. The MINER Act was the first significant mine 

safety reform legislation to be enacted in over a generation. The 

law’s requirements included changes specifically designed to address deficiencies in mine practices that were highlighted by the 

Sago, Aracoma, and Darby mine accidents. 

The MINER Act was crafted to improve mine safety by increasing the responsibilities of both mine operators and MSHA. Under 

the MINER Act, mine operators are required to: 

• Call MSHA within 15 minutes of a mine accident that 

could cause death, injury or entrapment in order for a rescue 

team to be deployed in a timely manner; 

• Adopt an emergency response plan that contains post-accident communications and tracking systems, post-accident 

breathable air, lifelines, training, and local coordination; 

• Install post-accident, flame-resistant directional lifelines; 

and 

• Increase the frequency of emergency evacuation drills. 

Among its provisions, the MINER Act required MSHA to revise 

its penalties, increase fines in egregious cases to $220,000, undertake studies regarding mining practices, and to work to improve 

the technology for communications underground. Congress set a 

very aggressive time-frame for MSHA to complete these requirements. Congress also increased funding for the two primary federal 

agencies that oversee the mining industry: MSHA and the National 

Institute for Occupational Safety and Health (NIOSH). 

More specifically, under the MINER Act, MSHA has the responsibility to approve mines’ emergency response plans. MSHA indicates that it had completed its review and approval of these plans 

as of March 2007. 

In addition, the law directed MSHA to undertake a wide range 

of regulatory changes and technical studies. MSHA’s responsibilities under the MINER Act include directives to: 

• Revise the penalty structure of the Federal Mine Safety 

and Health Act of 1977;3

• Certify post-accident communications and tracking systems; 

• Develop regulations addressing post-accident breathable 

air for individuals trapped underground; 

• Certify composition and new training requirements for coal 

mine rescue teams; Establish a liaison office to be the primary 

communicators with families of victims, mine operators, the 

press, and the public; 

• Increase the standard governing seals on mines to a more 

strength resistant level; Establish a belt air technical study 

panel; and 


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4 Currently, a manufacturing backlog of approximately 90,000 SCSRs exists. A mine is deemed 

to be in compliance with the rule if the mine operator can demonstrate that necessary SCSRs 

are on order. 5 Redundant communication entails multiple systems; in the event one fails as the result of 

an accident, others might still be active. 

• Present a report to Congress outlining how the agency will 

update its regulations based on the various studies. 

MSHA ACTIVITY RELATING TO IMPLEMENTATION OF THE MINER ACT

Following enactment of the MINER Act, MSHA aggressively 

began implementation of the new statute. To date, each statutory 

deadline required by the MINER Act has been met by MSHA. 

Throughout the implementation of the MINER Act, MSHA has 

provided a detailed accounting of its progress. More specifically, on 

October 24, 2006, MSHA issued a Program Policy Letter entitled 

‘‘Implementation of Section 2 of the Mine Improvement and New 

Emergency Response Act of 2006,’’ which outlines the requirements 

for emergency response plans. On December 8, 2006, MSHA issued 

its final rule entitled ‘‘Emergency Mine Evacuation,’’ which detailed 

requirements under mines’ Emergency Response Plans (ERPs) (the 

‘‘ERP rule’’). On February 8, 2007, MSHA issued a Public Information Bulletin (PIB), ‘‘Options for Providing Post-Accident Breathable Air to Underground Coal Miners.’’

Due in large part to MSHA’s efforts, the implementation record 

of the MINER Act is demonstrated by a host of completed MSHA 

actions: 

• The MINER Act required all coal mines to submit emergency 

response plans to MSHA; all plans were submitted by the statutory 

deadline of August 14, 2006. 

• The MINER Act required more Self-Contained Self-Rescuer 

(SCSR) devices for each miner to be contained in every underground coal mine. This requirement was fully implemented by December 8, 2006, according to MSHA’s ERP rule.4

• The MINER Act required fire-resistant evacuation life lines in 

all underground coal mines within three years. This requirement 

was implemented by December 8, 2006, pursuant to the Emergency 

Mine Evacuation Rule. • The MINER Act mandated additional safety training and 

training on the use of SCSRs at underground coal mines. This requirement was implemented by Dec. 8, 2006, pursuant to the 

Emergency Mine Evacuation Rule. The Committee further understands that MSHA plans to issue additional guidance in this area. 

• The MINER Act required all mine operators to contact MSHA 

within 15 minutes of an accident. This requirement has been in 

place since March 9, 2006 and was finalized by December 8, 2006, 

pursuant to the Emergency Mine Evacuation Rule. 

• The MINER Act required redundant5 underground-to-surface 

communications systems in underground coal mines. MSHA has 

approved a total of 12 such systems, including three new devices. 

• The MINER Act required emergency supplies of breathable air 

for coal miners trapped underground for up to 96 hours. As noted 

above, MSHA’s February 8, 2007 PIB provided guidance to mine 

operators concerning acceptable quantities and delivery methods in 

underground coal mines. 


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6See Committee on Education and Labor Hearing, ‘‘Protecting the Health and Safety of America’s Mine Workers,’’ (March 28, 2007); Committee on Education and Labor Hearing, ‘‘Evaluating the Effectiveness of MSHA’s Mine Safety and Health Programs,’’ (May 16, 2007); Subcommittee on Workforce Protections Hearing, ‘‘The S–MINER Act (H.R. 2768) and the Miner 

Safety Enhancement Act (H.R. 2769),’’ (July 26, 2007); Committee on Education and Labor 

Hearing, ‘‘Mine Safety: The Perspective of the Families at Crandall Canyon’’ (October 3, 2007). 

• MSHA has trained 14 officials to serve as Family Liaisons, as 

required under the MINER Act. A Program Policy Letter has been 

issued and the 14 designated family liaison personnel completed 

their initial training sessions with the National Transportation 

Safety Board and the Red Cross in December 2006. 

• On March 22, 2007, MSHA published in the Federal Register 

a final rule on civil penalties, revising the agency’s civil penalty assessment regulations and implementing procedures regarding the 

civil penalty provisions of the MINER Act. 

In short, MSHA has an exemplary record with respect to its implementation of the MINER Act, having met all of its statutory 

deadlines to date. It is against this regulatory backdrop and 16 

months of accomplishment that the Committee considered H.R. 

2768. 

REPUBLICAN VIEWS

The record on H.R. 2768 is unbalanced and lacking in evidence to 

support legislation 

Thus far, in the first session of the 110th Congress, the Committee has held four hearings on mining, generally—but only one 

legislative hearing (in the Workforce Protections Subcommittee) 

specifically devoted to H.R. 2768.6 As a result, unfortunately, the 

hearing and information-gathering process for H.R. 2768 was wholly inadequate, and largely excluded significant stakeholders’ perspectives. 

Less than 25 percent of the mining industry is currently unionized. Despite this fact, and despite having had ample opportunity 

to be heard on mining issues before the Committee at previous 

mine safety hearings, three of the four panel members at the sole 

legislative hearing on H.R. 2768 represented union interests. At 

the same time, representatives of the mining industry were wholly 

excluded from the witness panel. It was for this reason during the 

legislative hearing on July 26, 2007, Ranking Republican Joe Wilson moved to seat as a witness a representative of the National 

Mining Association. This motion was rejected on a party-line vote. 

Moreover, no representative of the metal/non-metal industry was 

allowed an opportunity to address the Committee regarding provisions of H.R. 2768, despite the fact that the bill would significantly 

impact that segment of the mining industry. 

Indeed, the only witness at the July 26 hearing who was not affiliated with organized labor, a representative of MSHA, testified 

as to no less than 16 areas of the bill which were less protective 

than current law. That the Committee would proceed to consider 

significant new regulation on so flimsy and lopsided a record deeply 

troubles Committee Republicans. 


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7See Congressional Record, p. H3453, June 7, 2006. 

8See Transcript of Committee on Education and Labor Hearing, ‘‘Evaluating the Effectiveness 

of MSHA’s Mine Safety and Health Programs’’ (May 16, 2007) (available in the offices of the 

Committee). 

MSHA has addressed concerns of the MINER Act’s opponents 

During last year’s debate on the MINER Act, then-Senior Democrat Member of the Committee on Education and the Workforce 

George Miller outlined his reasons for opposing the legislation: 

Unfortunately, the bill sent from the Senate fails to 

make the reforms that go to the very heart of what happened in the Sago mine disaster. It fails in three significant ways. It does not guarantee that miners trapped underground will have enough air to survive an accident like 

Sago. It does not give miners prompt access to wireless 

communications and electronic tracking devices so they 

can communicate with their rescuers instead of having to 

bang on pipes and bang on rocks like miners did hundreds 

of years ago. 

It does not guarantee that the emergency oxygen units 

like the ones that Randal McCloy, the only Sago survivor, 

told us in some cases were defective, and would be tested 

at random by the Federal Government to ensure that they 

work properly.7

In the sixteen months since passage of the MINER Act, each of 

the concerns raised by Representative George Miller and other opponents of the MINER Act have been addressed by MSHA. 

Most notably, MSHA’s implementation of breathable air provisions of the MINER Act now require 96 hours of breathable air—

twice the supply that Representative Miller had argued was necessary. Indeed, when questioned about the reasoning behind a 96–

hour requirement, MSHA’s Administrator, Richard Stickler, responded: 

We did research on the disasters that have occurred in the 

past to determine how long it took rescue teams to locate 

miners. We also looked at situations such as, when you 

have a fire or explosion; particularly, how long does it take 

for the mine atmosphere to stabilize enough that you can 

get accurate measurements to safely send rescue teams in 

the mine. And we thought that the 96 hours would provide 

that.8

With respect to wireless communications and tracking devices, 

the technology which MINER Act opponents would have insisted 

upon was not available at the time the law was enacted, nor is it 

even available today. In the months since enactment of the MINER 

Act, considerable progress has been made by MSHA, NIOSH, and 

the private sector to achieve wireless technology. Unfortunately, 

not all commercial technology can simply be taken and placed within the highly specific and unique atmosphere of a mine; indeed, all 

electronic equipment to be used in mines must meet rigorous 

standards set by MSHA to ensure it does not ignite naturally-occurring methane within mine environments. As such, while significant progress has been made to address Mr. Miller’s concerns reVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00131 Fmt 6604 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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9The LTFE effectively doubles the number tested in previous years. See Long-Term Field 

Evaluation Program Concept, NIOSH Docket Number NIOSH–101. 10See H.R. 2768, the ‘‘Supplemental Mine Improvement and New Emergency Response Act’’

& H.R. 2769, the ‘‘Mine Health and Safety Enhancement Act.’’ 11 A seal is a partition built in a mine to prevent accessing areas that have been ‘‘mined out’’

or are no longer working areas of a mine. 

garding wireless communication, the laws of physics cannot be altered by legislative fiat. Nonetheless, experts are focusing on the 

communications issues and all parties involved remain committed 

to implementing wireless communication. 

Finally, through implementation of the MINER Act, concerns 

with the random testing of self-contained self-rescuers (SCSRs) 

have been addressed. A random testing program existed before the 

passage of the MINER Act and has been reevaluated because of the 

issues highlighted in the Sago accident. As NIOSH has noted in 

adopting an LTFE (Long Term Field Evaluation) sampling plan: 

‘‘The LTFE sampling plan will utilize an MSHA-generated and 

maintained inventory of SCSRs used by the mining industry. The 

MSHA list represents an inventory of SCSRs from each mine collected into a single master listing of all SCSRs. The list will be randomly sorted to select respirators for the LTFE program.’’ 9

In short, and despite assertions to the contrary, where, as in the 

MINER Act, MSHA has been given clear guidelines, the agency has 

sought to find the most protective, thoughtful solution. The evidence suggests that MSHA has been widely successful in doing so. 

H.R. 2768 as Reported by the Committee fails as a matter of mine 

safety policy 

The final S-MINER bill reported by the Committee to the House 

is the product of two separate pieces of legislation.10 At markup, 

Chairman Miller offered an amendment in the nature of a substitute, which joined both of these pieces of legislation along with 

changes to the original text of the introduced bills. It also added 

entirely new provisions not found in either of the introduced bills. 

In far too many instances, the Miller Substitute seeks to undo 

the progress toward improved safety achieved during the last 16 

months by MSHA, NIOSH, or industry by imposing conflicting provisions and new requirements for rulemaking. The result, unfortunately, will be delays in implementing potentially lifesaving improvements to current mining practices. Put more simply, the 

premise that this bill will speed the implementation of mine safety 

technology wholly fails to acknowledge the work that has already 

been done; and in doing so actually impedes that progress. The failure of H.R. 2768 in this regard is highlighted in a number of examples: 

Mine Seals. The Miller Substitute modifies MINER Act requirements relating to mine seals,11 and instead outlines a new seal 

monitoring protocol. Under H.R. 2768, all seals will need to be 

monitored, perhaps by boreholes, even those constructed prior to 

the legislation. Given that these seals were not engineered to be 

monitored by boreholes, these provisions create the potential for an 

explosive oxygen-methane mix. Moreover, these provisions threaten 

to undermine the rulemaking mandated by the MINER Act that 


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12The use of belt air is the practice of ventilating a mine down a belt entry. The Mine Act 

prohibits the use of belt air on mines opened after passage of the Act; mines operating before 

the passage of the Act can utilize belt air with certain conditions in place. The mining industry 

believes that the use of belt air lowers the concentration of methane at the mine face, reduces 

the level of dust miners are exposed to, and can lower the temperature of the working environment. The Clinton Administration allowed the use of belt air by providing individual waivers 

for mines. 13See International Union, United Mine Workers of America v. MSHA, 407 F.3d 1250 (DC Cir. 

2005). 14 A refuge chamber could be a stand-alone structure or protected area of a mine in which 

miners could seek shelter in the event of an emergency. 

preceded the bill; MSHA indicates that the results of this rulemaking will be in place by February 2008. 

Belt Air. With respect to belt air,12 the S–MINER Act purports 

to lessen the restriction on the use of belt air by allowing mine operators to petition the Secretary for a modification to allow them 

to use belt air. This restores a flawed ‘‘petition for modification’’ process, which was eliminated because it was rare for modifications 

not to be granted. Under current law, MSHA allows for the use of 

belt air with specified safety requirements, such as enhanced atmospheric monitoring. Moreover, H.R. 2768 precludes MSHA from 

reporting to Congress on the results of the belt air study currently 

underway and what changes it proposes to make based on the 

study panel’s recommendations, as required by the MINER Act. 

This provision is fundamentally flawed, and appears to be intended 

to achieve legislatively what organized labor could not convince a 

court to do—overturn MSHA’s belt-air regulation.13

Refuge Chambers. Currently, NIOSH is actively engaged in a 

study of the appropriate uses of refuge chamber 14 technology in 

underground mines. The MINER Act required MSHA to report to 

Congress what regulatory actions would be taken based on 

NIOSH’s study. Instead of waiting to receive that study—and then 

legislating based on evidence—the Democrat Majority has chosen 

to legislate based on supposition, in the process curtailing stakeholder input through rulemaking, and mandating prescriptive provisions for the use of rescue chambers. This inflexible approach 

does not account for varying mine conditions that could prevent a 

chamber’s use or necessitate more sophisticated alternatives. 

Communications. MSHA remains committed to the improvement 

and utilization of wireless communications technology. The SMINER bill threatens to undermine these efforts. Testimony before 

the Committee by Mr. Kevin Stricklin, Administrator for Coal Mine 

Safety and Health at MSHA, and a letter opposing the legislation 

by MSHA’s Assistant Secretary Stickler, enunciated concern regarding the communications provisions of H.R. 2768: 

Given all the work being done by NIOSH, MSHA, and 

the private sector to develop a wireless system, it is premature to mandate the ‘‘leaky feeder’’ system nation-wide 

now. Mandating the use of the ‘‘leaky feeder’’ or other hard 

wire systems may reduce the incentives for industry to develop and deploy wireless systems that will provide greater 

protection to miners. Furthermore, if and when a truly 

wireless system is developed, it will make the ‘‘leaky feeder’’ system obsolete. This requirement would result in significant costs for a system which would essentially become 

obsolete relatively soon because miner operators are reVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00133 Fmt 6604 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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15See Letter from Assistant Secretary for Mine Safety and Health Richard Stickler dated October 29, 2007. 16 Id. 

quired to have a truly wireless system in place by June 

2009.15

H.R. 2768 compounds the concern raised by Mr. Stickler by requiring mine operators to adopt new communications technology 

once it is certified by NIOSH, irrespective of whether this technology has been approved by MSHA for ‘‘intrinsic safety.’’ This creates not only a conflict in the law, but a potentially serious safety 

concern. Placing technology in a mine which has not been deemed 

intrinsically safe has the potential to result in the utilization of 

equipment that might, for example, ignite naturally-occurring 

methane and cause an explosion—exactly the type of occurrence 

mine safety regulations are intended to prevent. 

Notification. The two-tiered notification system in the event of an 

accident mandated under H.R. 2768 would result in a conflict between the S–MINER Act and current law. Current MSHA regulations require a mine operator to call MSHA within 15 minutes of 

a reportable incident or face up to a $60,000 fine. The S–MINER 

Act alters those provisions such that one set of reportable incidents 

would now be subject to a 15 minute notification requirement, 

while another set of reportable incidents would be subject to a new 

one hour limit contained in the legislation. MSHA’s current standard is more protective and clear-cut, suggesting this provision is, 

at best, unnecessary and at worst lessens protection to miners in 

some instances. 

Ventilation. On the issue of ventilation controls, MSHA could not 

have been clearer when it noted, ‘‘the first problem with this provision [in the S–Miner Act] is the impracticality of a one-size-fits-all 

rule without input from stakeholders’’ and that ‘‘other geologic conditions necessitate other types of ventilation controls.’’ 16 As a policy matter, Committee Republicans are concerned that micromanaging and legislating the details of highly technical regulations 

may prevent improved ventilation control technology from being 

implemented when it becomes available. Moreover, voiding the 

rulemaking process prevents labor, industry, safety and engineering experts from providing data that can assist MSHA in developing a scientifically sound rule, and eliminates the public scrutiny 

that is a necessary part of a sound policymaking process. 

MSHA Investigatory Processes. While there continues to be no 

evidence that MSHA is incapable of investigating a mine accident 

or performing an internal review of its actions surrounding an accident, H.R. 2768 provides for at least two ‘‘independent’’ investigations, including one conducted by NIOSH, whenever a multiple fatality mining accident occurs. H.R. 2768 further allows the Chemical Safety Board to conduct an investigation of events, notwithstanding the agency’s lack of jurisdiction or expertise. Current law 

and practice provide for extensive investigation in the event of a 

mining accident, including an examination by MSHA of its own internal actions. MSHA, with sound policy reasons, has objected to 

additional investigations because they could ‘‘undercut and jeopardize the MSHA enforcement effort. If two government-sanctioned 


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17 Id. 18Subcommittee on Workforce Protections Hearing, ‘‘The S–MINER Act (H.R. 2768) and the 

Miner Safety Enhancement Act (H.R. 2769)’’ (July 26, 2007). 

reports reached different conclusions, it could result in a situation 

where the Department of Justice is unable to prosecute the offenders.’’ 17 Finally, nothing in the record suggests that involving the 

Chemical Safety Board, which has no expertise in mining, is advisable, prudent, or necessary. 

Recommended Exposure Limits. As noted above, H.R. 2769, the ‘‘Miner Health Enhancement Act,’’ was revised and incorporated 

into H.R. 2768 by way of the Miller substitute amendment. Fundamentally, these provisions are nothing less than an attempt to 

eviscerate the regulatory process. H.R. 2768 requires MSHA to 

adopt recommended exposure limits (RELs) established by NIOSH, 

regardless of the fact that these RELs are not subject to the same 

economic and technologic feasibility requirements that a permissible exposure limit (PEL) adopted by MSHA would be. Testimony 

before the Committee by Michael Wright, Director of Health, Safety 

and Environment for the United Steelworkers, highlights this fundamental flaw: 

Many of the NIOSH RELs were adopted without a consideration of technological feasibility, particularly in mining. It would be nice to set standards solely on the basis 

of health effects, but up until now the laws governing 

OSHA, MSHA and hazardous air pollutants under EPA 

have always recognized that standards must be not only 

protective, but must be feasible as well. Therefore, we 

would suggest a slight modification of H.R. 2769 which 

would give MSHA the discretion (but not the requirement) 

to modify the PEL through notice and comment rulemaking if the Agency determines that the NIOSH REL 

may be infeasible in mining.18

Rather than adopting an approach which ensures that MSHA examine RELs for mining feasibility, H.R. 2768 requires miners or 

mine operators to petition the Secretary to review the feasibility of 

any REL or established PEL. This provision completely upends and 

discounts MSHA’s statutory role in the rulemaking process. 

Crandall Canyon. Committee Republicans recognize that the 

tragic events of Crandall Canyon present new and different challenges for mine safety. For that reason, Republicans supported an 

amendment offered by Workforce Protections Subcommittee Ranking Member Joe Wilson which sought to address these issues (described more fully below). The Majority, in contrast, simply added 

legislative language to its substitute which did not receive scrutiny 

during the legislative process and which, in too many instances, 

represents examples of inflexible rulemaking which could lessen 

safety. H.R. 2768 prescribes extensive regulation for roof screening 

and support, and requires a mine to adopt an approved barrier reduction or pillar extraction plan before performing either action. By 

adopting highly prescriptive mandates, and substituting their own 

judgment for that of true mine safety experts, the Majority threatens to undermine the use of specialized or more protective mine 

safety technology. 


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H.R. 2768 is unnecessary, undermines the progress of last year’s 

MINER Act, and could diminish miner safety 

Despite numerous hearings in this Congress, the evidence before 

the Committee falls far short of establishing the need to alter fundamental provisions of the MINER Act or otherwise make wholesale changes to the law. Indeed, in light of the conclusions reached 

by MSHA regarding last year’s mining accidents, the MINER Act 

appears to have struck the appropriate balance for improving mining safety. Finally, it bears note that nothing heard at any hearing 

suggests that that the S–MINER Act would have done anything to 

prevent the subsequent and tragic Crandall Canyon disaster. It is 

for all of these reasons that Committee Republicans reject H.R. 

2768 as fundamentally flawed and unnecessary. 

H.R. 2768 does little to improve miner safety and health. Indeed, 

in many instances, provisions of the bill are so prescriptive as to 

cement into law archaic practices rather than foster innovative solutions. In doing so, the bill could have the perverse effect of actually diminishing miner safety. We find this prospect extremely 

troubling. 

Committee Republicans are not alone in this view, nor do they 

arrive at it in a vacuum. Mine experts themselves have indicated 

that the flawed bill lessens mine safety by weakening current regulatory protections. On July 25, 2007, twelve professors of mining 

engineering urged Congress to allow the complete implementation 

of the MINER Act before considering new legislation: 

Unfortunately, mine safety and health experts dispersed 

throughout the mining industry are not being afforded the 

opportunity to entrench the necessary safety culture in 

their mines. They must ultimately ensure that many of the 

MINER Act provisions will be institutionalized in practice 

at their mines. Thus far, they have been fully occupied 

with the nuts-and-bolts of complying with the act and have 

not had adequate time to coordinate and address this next, 

very important step. It is imperative that every employee 

at a mine does his/her job thoroughly and then effectively 

addresses existing or potential risks. Safety professionals 

at mines as well as federal and state inspectors are the 

driving forces to inculcate such a culture of prevention, but 

this inculcation process requires significant time for penetration into the work environment. 

While there may be other safety and health issues that 

should be addressed in the future, in our opinion now is 

not the right time to pursue as much as is proposed in the 

pending bill. The intense work load on mine management, 

including safety professionals, and ultimately the miners 

who have to do the downstream MINER Act-related work 

is too great at this time to contemplate further legislation. 

Another option to consider would be to bring together miners, mine operators and other stakeholders in a partnership mode to assess the effectiveness of the MINER Act 

once it is fully implemented and all required studies are 

completed. At that time, all of us who are dedicated to improving mining safety can make an informed judgment on 


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19Letter to Chairman Miller and Senior Republican Member McKeon dated July 25, 2007 

from Robert L. Ferriter et al. (attached hereto as Appendix A). 

the need for and content of any additional legislation 

aimed at addressing any unresolved problems.19

AMENDMENTS OFFERED IN COMMITTEE

During consideration of H.R. 2768 in Committee, Republicans offered several amendments to improve the legislation and direct its 

focus toward necessary reforms. 

Kline Amendment. Health, Employment, Labor, and Pensions 

Subcommittee Ranking Republican Kline offered an amendment to 

the underlying bill which would have affirmatively provided that a 

mine operator could lawfully make use of its miners’ experience by 

way of employer/employee safety teams. Unfortunately, too often 

today, provisions within Depression-era labor laws designed to 

avoid the early-20th century problem of ‘‘company unions’’ have 

been used to thwart employers (particularly non-union employers, 

who constitute 75 percent of the industry) from meaningfully including their workers in cooperative mine safety efforts. The Kline 

Amendment would have provided that non-union employers could 

lawfully include their employees in cooperative efforts relating to 

workplace safety and employment conditions. Its merits notwithstanding, this common-sense, pro-miner amendment was rejected 

on a party line vote of 15 to 25, with all Democrats voting against. 

Wilson Amendment. Workforce Protections Subcommittee Ranking Republican Joe Wilson offered an amendment in the nature of 

a substitute to the underlying bill. The Wilson Substitute addressed specific policy concerns raised by the recent Crandall Canyon accident, while leaving intact the underlying framework of the 

MINER Act. The amendment would have responded to testimony 

heard in the Senate’s hearings on the Crandall Canyon incident 

which made clear that MSHA needs to establish a formal dialogue 

with the Bureau of Land Management (BLM) about any safety concerns BLM observes during the inspection of a federal coal lease. 

The amendment also required two studies of issues highlighted by 

conditions in Crandall Canyon: mining in deep mines and pillar removal or ‘‘retreat mining.’’ Finally, the Wilson Substitute, based on 

a model established by the National Transportation Safety Board, 

would have ensured that MSHA alone was the official conduit of 

all information relating to a mine accident. The Wilson Substitute 

focused mine safety reform efforts where they are most needed, 

rather than undoing a year and a half of progress. That notwithstanding, the amendment was rejected 17 to 26, with all Democrats 

voting against. 

McKeon Amendment. Committee Senior Republican Member 

McKeon offered an amendment to remove provisions contained 

within H.R. 2768 dealing with issues which were already effectively 

addressed in the MINER Act, and which provisions could have, in 

fact, undermined ongoing implementation of that law, resulting in 

diminished mine safety. Specifically, the McKeon Amendment 

would have stricken S–MINER provisions relating to the required 

use of refuge chambers; self-contained self-rescuer testing; wireless 

communications; mine seals; and the use of belt air. In each inVerDate Aug 31 2005 04:09 Nov 20, 2007 Jkt 069006 PO 00000 Frm 00137 Fmt 6604 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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stance, ongoing studies or regulatory activity being undertaken by 

MSHA as a result of the MINER Act would be undermined by 

these S–MINER provisions. Nevertheless, the McKeon amendment 

was rejected 17 to 26, with all Committee Democrats voting 

against. 

CONCLUSION

As set forth above, H.R. 2768 does little more than effectively gut 

the MINER Act, extend regulatory timeframes for compliance on 

important issues that have been examined over the last sixteen 

months, and eviscerate any number of robust rulemaking processes. The legislation has the potential to reduce mine safety by cementing current practices into law and creating a ‘‘one-size fits all’’

model that fails to take into account varying mine conditions. The 

bill muddles current mining regulations and, ultimately, fails to 

meet any reasonable test of good public policy. Above all, H.R. 2768 

dictates complicated and technical safety regulations by way of 

Congressional fiat, with untold and unintended consequences for 

mine operators, miners, and their loved ones. 

H.R. 2768 in too many instances exhibits a dangerous hubris, 

and predicates itself on the notion that Members of Congress are 

better suited to dictate the metes and bounds of mine safety regulation than those experts tasked and trained under law to do so. 

Despite the call from the mining community, the federal agency 

tasked with mine safety and oversight, and in some instances, organized labor itself, the Majority has chosen to ignore these stakeholders and replace themselves as experts. Sadly, it is miners and 

their families who bear the risk and ultimate consequence of this 

legislative arrogance. 

For all of these reasons, we respectfully oppose H.R. 2768 and 

urge its rejection by the full House of Representatives. 

HOWARD P. MCKEON. 

THOMAS E. PETRI. 

PETER HOEKSTRA. 

MARK E. SOUDER. 

VERNON J. EHLERS. 

JUDY BIGGERT. 

TODD RUSSELL PLATTS. 

RIC KELLER. 

JOE WILSON. 

JOHN KLINE. 

CATHY McMORRIS RODGERS. 

KENNY MARCHANT. 

TOM PRICE. 

CHARLES W. BOUSTANY, Jr. 

VIRGINIA FOXX. 

ROB BISHOP. 

DAVID DAVIS. 

TIMOTHY WALBERG. 

DEAN HELLER. 

Æ 


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