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EVALUATING HEALTH AND SAFETY REGULATIONS

IN THE AMERICAN MINING INDUSTRY

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

OF THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

March 1, 2006

Serial No. 109–31

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

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

HOWARD P. ‘‘BUCK’’ McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

Mark E. Souder, Indiana 

Charlie Norwood, Georgia 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Jon C. Porter, Nevada 

John Kline, Minnesota 

Marilyn N. Musgrave, Colorado 

Bob Inglis, South Carolina 

Cathy McMorris, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Bobby Jindal, Louisiana 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

Thelma D. Drake, Virginia 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

[Vacancy] 

George Miller, California, 

Ranking Minority Member 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York 

[Vacancy]

Vic Klatt, Staff Director 

Mark Zuckerman, Minority Staff Director, General Counsel 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice Chairman 

Ric Keller, Florida 

John Kline, Minnesota 

Kenny Marchant, Texas 

Tom Price, Georgia 

Thelma Drake, Virginia 

Howard P. ‘‘Buck’’ McKeon, California, 

ex officio 

Major R. Owens, New York 

Ranking Minority Member 

Dennis J. Kucinich, Ohio 

Lynn C. Woolsey, California 

Timothy H. Bishop, New York 

[Vacancy] 

George Miller, California, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on March 1, 2006 .............................................................................. 1

Statement of Members: 

Capito, Hon. Shelley Moore, a Representative in Congress from the State 

of West Virginia, prepared statement of ..................................................... 3

Miller, Hon. George, Ranking Minority Member, Committee on Education 

and the Workforce, prepared statement of ................................................. 35

Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce Protections, Committee on Education and the Workforce ................................... 1

Prepared statement of ............................................................................... 4

Owens, Hon. Major R., Ranking Minority Member, Subcommittee on 

Workforce Protections, Committee on Education and the Workforce ....... 4

Supplemental questions to witnesses ...................................................... 45

Newspaper articles: 

Associated Press: ‘‘Additional Blasts Rock Alabama’s Biggest 

Mine, Now Closed’’ ......................................................................... 5

Birmingham News: ‘‘Another Explosion Rocks Coal Mine; Gas 

Eruptions Go On in Shoal Creek’’ ................................................. 6

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

of West Virginia, prepared statement of ..................................................... 9

Statement of Witnesses: 

Friend, Hon. Robert, Acting Deputy Assistant Secretary, Mine Safety 

and Health Administration, U.S. Department of Labor ............................ 12

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

Response to supplemental questions ....................................................... 55

O’Dell, Dennis, Administrator for Department on Occupational Health 

and Safety, United Mineworkers of America .............................................. 19

Prepared statement of ............................................................................... 21

Additional materials submitted ............................................................... 64

Watzman, Bruce, Vice President, Safety and Health and Human Resources, National Mining Association ......................................................... 26

Prepared statement of ............................................................................... 28

Response to supplemental questions ....................................................... 62

Additional Materials Supplied: 

Hawkins, Charles E. III, CAE, Executive Vice President and COO, National Stone, Sand, & Gravel Association: 

Prepared statement of ............................................................................... 72

Supplemental materials ............................................................................ 74

Neason, Mike, Administrator, Mining Practice Specialty of the American 

Society of Safety Engineers, prepared statement of .................................. 90

(1)

EVALUATING HEALTH AND SAFETY 

REGULATIONS IN THE U.S. MINING INDUSTRY 

Wednesday, March 1, 2006

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 12:03 p.m., in room 

2175, Rayburn House Office Building, Hon. Charlie Norwood 

[chairman of the subcommittee] presiding. 

Present: Representatives Norwood, Keller, Marchant, Price, 

McKeon, Owens, Woolsey, Miller, and Holt. 

Staff present: Byron Campbell, Legislative Assistant; Steve 

Forde, Director of Media Relations; Kevin Frank, Coalitions Director for Workforce Policy; Ed Gilroy, Director of Workforce Policy; 

Rob Gregg, Legislative Assistant; Richard Hoar, Professional Staff 

Member; Kimberly Ketchel, Communications Staff Assistant; Jim 

Paretti, Workforce Policy Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Deborah L. Emerson Samantar, 

Committee Clerk/Intern Coordinator; Toyin Alli, Staff Assistant; 

Jody Calemine, Labor Counsel; Michele Evermore, Legislative Associate/Labor; Tylease Fitzgerald, Legislative Assistant/Labor; 

Peter Galvin, Senior Legislative Assistant/Labor; Tom Kiley, Communications Director; Rachel Racusen, Press Assistant; Marsha 

Renwanz, Legislative Associate/Labor; and Mark Zuckerman, Minority Staff Director/General Counsel. 

Chairman NORWOOD [presiding]. A quorum being present, the 

Subcommittee on Workforce Protections will now come to order. 

We are meeting today to hear testimony on evaluating health 

and safety regulations in the American mining industry. Under 

Committee Rule 12(b), opening statements are limited to the chairman and the ranking minority member of the subcommittee. 

Therefore, if any other members have statements, they may be 

included in the hearing record. 

Of course, we are delighted to have Mr. McKeon, our full chairman, here. And if the chairman wishes to make a comment, he certainly could. 

With that said, I ask unanimous consent for the hearing record 

to remain open for 14 days to allow member statements and other 

extraneous material referenced during the hearing to be submitted 

in the official hearing record. Without objection, so ordered. 

2

Today we have assembled an expert panel of witnesses to help 

the subcommittee evaluate the safety of American mining industry. 

This hearing will focus on the Mine Safety and Health Administration’s, MSHA’s, role in enforcing the Mine Safety and Health Act 

of 1977 and the responsibilities of mine operators and workers to 

ensure a safe working environment. 

I want this oversight hearing to help identify the safety issues 

facing the mining industry today. This is a very important goal 

that every member of our subcommittee shares. 

However, I do not want it to focus on politics, sloganeering, or 

partisan agenda. It is just simply too important. That will not help 

Congress improve mine safety and health. If you are here for the 

latter, I ask you please to reconsider before we begin. 

A few weeks ago, the House honored the miners lost in the recent mine accidents in West Virginia and the mine rescue team 

members who risked their lives to try to bring them back to safety. 

I am moved by these families’ losses and the bravery of the mine 

rescue teams. They will not be forgotten. 

As I stated earlier, I want to ensure that the focus of this hearing is on preventing similar accidents from occurring and how to 

best protect miners, mine rescue teams and ultimately to prevent 

future tragedies. 

With that said, we must keep in mind that the investigation of 

the West Virginia accidents is ongoing, and I do not want to prejudice that outcome. 

Republicans and Democrats do not always agree on the major 

issues facing Congress, but I will bet you we all can agree that the 

United States must reduce its need for foreign oil. 

In order to meet that goal, we are asking and turning to the mining industry to produce more in order to meet our domestic energy 

needs. This is especially true of the coal industry, which is already 

supplying 50 percent of our nation’s electricity needs. But it does 

not stop simply at energy. 

We also rely on domestic mining to support American infrastructure and production. In my home state of Georgia, for example, we 

mine a number of different minerals and ore that contribute to our 

nation’s construction and consumer needs. 

In fact, Georgia-based kaolin and china clay producers have an 

$830 million economic impact on my state every year. This is serious business, and it is important to make sure the folks that make 

this industry work are protected. 

After all, we are asking men and women to go into mines every 

day to work in challenging and sometimes very dangerous conditions. Everyone in the industry recognizes the dangers, and public 

policy must ensure that the law and regulations in place are protecting these men and women. 

We must also ensure that our laws take into account available 

technology and that laws are fairly enforced. This hearing is first 

in a series of hearings about mining and mine safety. 

Several of our colleagues who are not members of our committee 

have requested time to address this subcommittee. I want to assure 

my colleagues that there will be ample opportunity to provide their 

thoughts to this subcommittee in an appropriate forum. 

3

Because of the recently concluded joint meeting of Congress, our 

time today has been shortened. And at this time I ask unanimous 

consent to enter into the record a statement from Representative 

Capito. Hearing no one opposing, it is so ordered. 

[Prepared statement of Mrs. Capito follows:

Prepared Statement of Hon. Shelley Moore Capito, a Representative in 

Congress From the State of West Virginia 

Mr. Chairman, I want to thank you and the members of the Workforce Protection 

Subcommittee for holding this important hearing on mining health and safety regulations. West Virginia has experienced tragedy in our mines this year; already 16 

miners have been killed at the Sago, Alma, and Boone County mines. 

Coal mining is a vital part of West Virginia’s economy and provides a majority 

of the electricity used nationwide. We must strive to make underground mining as 

safe as we possibly can. 

Mining is a dangerous profession and unfortunately accidents will happen. Our 

health and safety regulations must be enforced vigorously to help prevent accidents 

and must include provisions for emergency communication, tracking, and oxygen devices. 

West Virginia’s congressional delegation introduced legislation that I hope will 

bring new safety regulations from MSHA. Communication systems and tracking devices are used in mines around the world, and we should make better use of these 

technologies in American mines. 

The lives of dozens of Canadian miners were saved thanks to a chamber equipped 

with oxygen, food and water, and a communications device. At a minimum such 

chambers should be carefully examined to determine whether they could be effective 

in US coal mines. 

We should also examine the requirements for mine rescue teams. When miners 

are trapped below the surface, rescue teams must be ready to begin the search as 

soon as it is safe to enter the mine. Given that underground mines vary drastically 

in design it is important that members of a mine rescue team be familiar with the 

mine. 

I am pleased that the Mine Safety and Health Administration (MSHA) has announced emergency regulations to increase the emergency oxygen supplies below the 

surface in mines, require lifelines, and provide for faster notification of accidents. 

The emergency action must not be a final step, but a first step in evaluating the 

technologies, mine practices, and response to accidents that can prevent serious injuries or death in our nation’s mines. 

I encourage the subcommittee to continue to consider the opinions of miners, operators, and other stakeholders as the oversight process continues. These people work 

in the mines each day and know the details of its work. It is important that their 

voices are heard as we go forward. 

Again, I commend the subcommittee for holding this important hearing and look 

forward to working further on regulations and legislation that will improve the safety of our mines. 

Critics of MSHA have stated their belief that the agency is not 

doing enough to enforce the law. Some also believe that MSHA 

does not have enough money, enough manpower and resources to 

enforce the law. MSHA will have an opportunity to respond to 

those critics and to describe this year’s budget proposal. 

Today’s panel will address many important policy issues as we 

begin to consider what, if any, changes could or should be made to 

improve the mine act. The policy debate has focused on breathable 

air, improved communications and better miner location technology. I urge our witnesses to broaden that discussion to any item 

that will work to improve mine safety. 

I would like to thank all of you, our witnesses, for taking your 

time out from your busy schedule to testify before us today. And 

I truly very much look forward to your testimony. 

4

Now, with pleasure, I yield to Mr. Owens for whatever opening 

statement he might wish to make. 

[The prepared statement of Chairman Norwood follows:

Prepared Statement of Hon. Charlie Norwood, Chairman, Subcommittee on 

Workforce Protections, Committee on Education and the Workforce 

Today we have assembled an expert panel of witnesses to help the Subcommittee 

evaluate the safety of the American mining industry. This hearing will focus on the 

Mine Safety and Health Administration’s (MSHA) role in enforcing the Mine Safety 

and Health Act of 1977, and the responsibilities of mine operators and workers to 

ensure a safe working environment. 

I want this oversight hearing to help identify the safety issues facing the mining 

industry today. This is an important goal that every member of our subcommittee 

shares. However, I do not want it to focus on politics, sloganeering or a partisan 

agenda. That will not help Congress improve mine safety and health. If you’re here 

for the latter, I’d ask you to kindly reconsider before we begin. 

A few weeks ago the House honored the miners lost in the recent mine accidents 

in West Virginia and the mine rescue team members who risked their lives to try 

to bring them back safely. I am moved by these families’ losses and the bravery of 

the mine rescue teams. They will not be forgotten. 

As I stated earlier, I want to ensure that the focus of this hearing is on preventing 

similar accidents from occurring and how to best protect miners, mine rescue teams, 

and ultimately, to prevent future tragedies. With that said, we must keep in mind 

that the investigation of the West Virginia accidents is ongoing, and I do not want 

to prejudge that outcome. 

Republicans and Democrats don’t always agree on the major issues facing Congress, but we all agree that the United States must reduce its reliance on foreign 

oil. In order to meet this important goal, we are asking the mining industry to 

produce more in order to meet our domestic energy needs. 

This is especially true of the coal industry, which is already supplying fifty percent of our nation’s electricity needs. 

But it does not stop at energy. We also rely on domestic mining to support American infrastructure and production. In my home state of Georgia, we mine a number 

of different minerals and ore that contribute to our nation’s construction and consumer needs. In fact, Georgia-based kaolin and china clay producers have an $830 

million economic impact on the state each year. This is serious business, and it’s 

important to make sure the folks that make this industry work are protected. 

After all, we are asking men and women to go into mines everyday to work in 

challenging and sometimes dangerous conditions. Everyone in the industry recognizes the dangers, and public policy must ensure that the law and regulations in 

place are protecting these miners. We must also ensure that our laws take into account available technology and that the laws are fairly enforced. 

This hearing is the first in a series of hearings about mining and mine safety. 

Several of our colleagues, who are not members of the Committee, requested time 

to address the subcommittee. I want to assure my colleagues that there will be 

ample opportunity to provide their thoughts in the appropriate forum. Because of 

the recently concluded joint meeting of Congress, our time today has been shortened. At this time, I ask unanimous consent to enter into the record a statement 

from Representative Capito. 

Critics of MSHA have stated their belief that the agency is not doing enough to 

enforce the law. Some also believe that MSHA does not have enough money, manpower, and resources to enforce the law. MSHA will have an opportunity to respond 

to those critics and describe this year’s budget proposal. 

Today’s panel will address many important policy issues as we begin to consider 

what, if any, changes could be made to improve the Mine Act. 

The policy debate has focused on breathable air, improved communication, and 

better miner location technology. I urge our witnesses to broaden the discussion to 

any item that will work to improve mine safety. 

I would like to thank our witnesses for taking time out from their busy schedules 

to testify before us today. I very much look forward to your testimony. 

Mr. OWENS. Thank you, Mr. Chairman. 

I want to begin to acknowledging the front line mine workers 

from the coal mining states of West Virginia, Pennsylvania and 

Ohio who are seated in the audience today. You all had to take a 

5

day off from work, and you traveled a far distance to attend this 

hearing, so we are delighted to have you. 

Those of you who are coal miners, your families, your communities and your states will be directly affected not only by what we 

say here today, but also by what we do or fail to do here in Washington. 

I expect all hard-working Americans and families to hold those 

of us who are elected officials fully accountable on this issue. 

Mr. Chairman, I am pleased that this subcommittee has agreed 

to hold an oversight hearing on mine safety, a hearing that members on this side of the aisle requested in the immediate aftermath 

of the Sago Mine disaster, in which 12 miners were killed on January 4, 2006. 

We are only 3 months into 2006, and already 21 mine workers 

have been killed on the job due to mine explosions, fires, roof collapses and other hazards. We must take immediate steps to stop 

this heavy death toll in our nation’s mines, and the Mine Workers 

Safety and Health Administration must be at the forefront of these 

efforts. 

I might add that recent press reports have indicated that in the 

Shoal Creek Mine in Alabama there have been several days now 

of mine explosions, and they have been forced to evacuate 140 

workers to safety. 

I ask unanimous consent to enter into the record two articles 

about the blast at the Shoal Creek Mines——

Chairman NORWOOD. So ordered. 

[The information follows:]

(From the Associated Press, February 28, 2006)

Additional Blasts Rock Alabama’s Biggest Mine, Now Closed 

BY JAY REEVES

BIRMINGHAM—More underground explosions have rocked Alabama’s largest coal 

mine since a blast last week forced the evacuation of scores of workers, and federal 

regulators said Tuesday it was unclear when production could resume. 

No one has been hurt in any of the blasts, and the government said the severity 

of the explosions was unknown since the mine remains too dangerous for anyone 

to enter. 

The Shoal Creek Mine, which recently underwent a court-ordered safety inspection, remained closed for a fifth day Tuesday following what regulators said were 

three blasts. The first occurred early last Friday, when about 140 workers were 

evacuated safely. 

A spokeswoman with the Mine Safety and Health Administration, Amy Louviere, 

said two more explosions occurred Sunday and Monday, but no one was at risk because no one had been allowed to re-enter the mine after the first explosion. 

Inspectors are checking the mine’s air quality through ventilation shafts and bore 

holes, she said, and workers are pumping ‘‘a lot’’ of water out of the mine. The mine, 

located about 45 miles west of Birmingham, isn’t safe enough for teams to enter and 

begin accessing and fixing damage, she said. 

The operator of the mine, Drummond Co., issued a brief statement saying the initial explosion was not a ‘‘major event.’’ It has not commented publicly on the subsequent explosions, and officials with the privately owned company did not return 

telephone calls seeking comment. 

Officials with the United Mine Workers of America also failed to return calls. 

Shoal Creek was among more than a dozen operations to undergo court-ordered 

safety inspections by the state in late January and early February after the union 

filed suit over lax oversight by the state. 

The state said its inspection at Shoal Creek was incomplete because of time constraints in meeting the court-ordered deadline, and The Tuscaloosa News reported 

that records indicate state regulators did not check the area where the initial explosion occurred. 

6

Shoal Creek is described by Drummond as Alabama’s biggest coal mine and one 

of the largest in the nation. It averaged 820 employees last year and produced 2.2 

million tons of coal. 

(From the Birmingham News, March 1, 2006)

Another Explosion Rocks Coal Mine;

Gas Eruptions Go On in Shoal Creek 

BY RUSSELL HUBBARD

Explosions continue to ignite fires at the Shoal Creek mine, with the fiercest one 

yet happening Tuesday afternoon. 

Monitoring equipment at the evacuated underground coal mine 45 miles west of 

Birmingham detected an explosion and fire about 2 p.m., said Thomas Wilson, 

health and safety representative of the United Mine Workers of America. 

That is the fourth such methane-fueled blast since Friday at the Drummond Co. 

coal mine that reaches 1,200 feet underground. 

Wilson said Tuesday’s explosion caused carbon monoxide monitors to register 

more than 6,000 parts per million, six times the levels measured Friday when the 

mine was evacuated. That level is enough to cause death within 15 minutes to exposed humans. 

‘‘There is nothing else down there to make those readings shoot up like that but 

explosions and fire,’’ Wilson said. 

Attempts to reach Birminghambased Drummond for comment were unsuccessful. 

The company, the union and the federal Mine Safety and Health Administration are 

working at the mine near Adger to monitor conditions and restore the site. 

The mine was evacuated in the early hours Friday after the first explosion and 

a roof fall. No one was injured. The mine employs 860 people and produced 3.1 million tons of coal last year. It was Alabama’s third largest by volume of production 

in 2005. 

103(k) Rule 

The mine has been vacant and idle since Friday. The federal mine safety agency 

has invoked its 103(k) rule, which requires the mine operator to get permission before re-opening the site, agency spokeswoman Amy Louviere said. 

‘‘There has been some damage to the ventilation controls,’’ Louviere said. ‘‘They 

are drilling holes and boring down to collect air samples.’’

Drummond said Friday the explosion was caused by an ignition of methane, a 

colorless and odorless combustible gas that often accompanies coal deposits. 

Union official Wilson said next efforts might include piping a cement-like material 

into the mine to seal the area where the explosions are happening. That might 

make things safe enough for reclamation teams to descend and assess conditions directly. 

Because the methane is hidden among tons of underground rock, it’s impossible 

for the miners to cut it off. The gas is erupting unpredictably from the coal face, 

sparking the explosions and fires, Wilson said. 

Of the three aspects of the ‘‘fire triangle’’—fuel, oxygen and heat—controlling the 

oxygen level might be the best bet in this case, Wilson said. 

‘‘We have got to take the oxygen away,’’ Wilson said. ‘‘This one keeps producing 

its own fuel, the methane.’’

Controlled, targeted flooding is also a technique that might interrupt the fire triangle, Wilson said. 

Salvage Efforts 

Some mines have burned for extended periods. In 1985, a Jim Walter Resources 

mine in Tuscaloosa County went through a series of explosions, said Wilson, who 

has been traveling the country working on such cases for more than 20 years. 

‘‘We’ve seen it before, but not in recent years,’’ he said. 

There is no way to estimate how long it might take to salvage the mine, he said. 

‘‘We just don’t know how much damage is occurring down there.’’

The mine’s water pumping equipment was shut off when electricity was cut to reduce fire risk. That means the periodic natural flooding the mine experiences has 

been unchecked for more than four days. 

Louviere, of the mine safety agency, said burning mines sometimes become too 

compromised to ever re-open. 

‘‘It doesn’t happen often, but it has happened,’’ she said. ‘‘Some mines have become so flooded and damaged that they are unrecoverable.’’

7

Mr. OWENS [continuing]. In Alabama. 

Mr. Chairman, our government is a government for the people, 

by the people, of the people. That means all the people, not just the 

people who own property, not just the mine owners, not just the 

millionaires. 

The security and safety and protection of all the citizens is the 

duty and the obligation of the government. Extreme exploitation 

and exposure of the workers is as much our concern as any other, 

so we are here today to talk about whether or government is doing 

its duty and living up to its obligation to protect all of our citizens. 

This poses a significant challenge to MSHA, because the Bush 

administration has severely undermined safety enforcement over 

the past 5 years. Rather than selecting professionals with expertise 

in mine worker safety and health issues for leadership positions in 

MSHA, President Bush appointed a person with mining industry 

management experience. 

This action was akin to turning the clock back to the 1950s and 

1960s, when staffers from the Bureau of Mines and Interior, people 

whose primary concern was the level of coal mine production, were 

in charge of worker safety. 

But Congress had clearly intended to change that mind set by 

enacting the Federal Coal Mine Health and Safety Act of 1969 and, 

subsequently, the Federal Mine Safety and Health Act of 1977. 

These acts established MSHA within the Department of Labor. We 

need to return at once to strict adherence to both the letter, the 

intent and the spirit of the 1969 and 1977 mine safety laws. 

On top of placing industry insiders in key MSHA posts, this administration also started requesting officially with each annual 

budget submission funding cuts and staff reductions for MSHA. 

The MSHA staffers most heavily downsized between 2001 and 2005 

have been those in coal enforcement. 

We have a chart which depicts the coal enforcement staffing cutbacks between 2001 and 2005. The graph on this chart features a 

downward slope which is both steep in appearance and depressing. 

It symbolizes a drop-off in coal enforcement. 

The high point of the chart is 1,233 staffers in 2001. The low 

point is a coal enforcement staffing for 2005 at 1,043 staffers. Overall, 190 positions have been cut in coal enforcement at the very 

time that the division needs to reinvigorate if it is to safeguard 

mine workers. 

The Bush administration also requested steep cuts in overall 

funding for MSHA between 2001 and 2006. This is depicted on a 

second bar chart which tracks MSHA funding requests in real dollar terms from 1998 to 2006. The bar chart paints this picture for 

us by comparing the official budget requests for each year with the 

previous year’s enacted budget. 

As you can see, annual increases in MSHA’s budget were requested from 1998 through 2001 during the Clinton years. In contrast, annual reductions were requested from 2002 to 2006 during 

the Bush years. 

Moreover, since 2001, the Bush administration has either withdrawn or delayed some 18 safety regulations under MSHA—18. 

Our third chart lists these rules, a number of which could have afVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
8

forded particularly important protections to mine workers in some 

of the recent disasters. 

For example, a pending rule to improve mine rescue teams, 

which would have given mine operators assistance in having two 

such teams on site, was withdrawn on September 4, 2002. When 

the Sago Mine disaster struck, it took more than 5 hours to get the 

rescue teams in place. 

Another regulation to ensure the flame resistance of conveyor 

belts was withdrawn on July 15, 2002. The Bush administration 

adopted a dangerous rule in its place, permitting conveyor belt air 

entries to be used as the sole ventilation source for working places 

in the mine. In January of this year, the Aracoma Alma Mine’s 

conveyor belt caught fire and killed two workers. 

Mr. Chairman, as a result of these staff reductions in coal enforcement, overall funding cutbacks in MSHA, and withdrawal of 

important safety rules, a lot of work is now required to strengthen 

protections for mine workers. 

To ensure that that happens, Congressman Rahall has introduced a bipartisan bill, H.R. 4695. On behalf of the entire West 

Virginia delegation and others on this committee, I ask you to 

schedule a markup on that bill as soon as possible and also ask 

unanimous consent that a statement by Congressman Rahall be included in this hearing record. 

Chairman NORWOOD. So ordered. 

[The prepared statement of Mr. Rahall follows:]

9

Statement of U.S. Rep. Nick J. Rahall, II

before the Subcommittee on Workforce Protections

March 1, 2006

Chairman Norwood and Ranking Member Owens, I would like to express my

appreciation as well as that of many who reside in the Nation’s coalfields for your

holding this hearing today.

It is our hope, and prayer, that this oversight hearing on mine safety will

quickly be followed by legislative action. On February 1 , the West Virginia st

Congressional Delegation introduced H.R. 4695, the “Federal Mine Safety and Health

Act of 2006.” As the unfortunate incidents earlier this year at the Sago, Melville and

two other mining operations in West Virginia underscored, current Mine Safety and

Health Administration regulations and policies are woefully inadequate on several

fronts, such as their neglect of advances in technologies that could be deployed to

increase the survival of coal miners involved in emergency situations.

It is unfortunate, but true, that as technology enabled our Nation to mine much

more coal in much less time with far fewer workers, advances that could improve the

conditions for workers in the mines were tragically shoved aside. Mine safety funds

were cut. Federal enforcement became lax. Indeed, less than three years ago I stood

on the floor of the House of Representatives and offered an amendment to halt the

Administration’s attempt to allow a fourfold increase in the amount of respirable

dust in underground coal mines. A regulation, I would note, that would have

resulted in more coal miner deaths due to the crippling disease known as black

lung.

In my view, it is time, indeed, far past the time, that we harken back to the true

letter, intent and spirit of the landmark Federal Coal Mine Health and Safety Act of

1969, as amended by the Federal Mine Safety and Health Act of 1977. That is the

purpose of the West Virginia Delegation’s legislation which I commend to your

attention for consideration. Thank you.

“Federal Mine Safety and Health Act of 2006" (H.R. 4695)

Enhanced Rescue Requirements

(1) Better notification – Require underground coal mine operators to

expeditiously provide notification of any accident where rescue work is necessary,

and insure that the Mine Health and Safety Administration has a system to

immediately receive these notifications.

(2) Rapid emergency response - Require operators to maintain mine rescue

teams whose members who are familiar with the workings of the coal mine as well


rahall_1.eps
10

as to have a coordination and communications plan between the teams and local

emergency response personnel. In addition, the Secretary is directed to issue

regulations to address the adequacy of rescue team training and member

qualifications, the type of equipment used bythe teams, the use of contractor teams,

as well as liability and insurance issues.

(3) Emergency air and communications - Require operators to maintain

emergency supplies of air and self-contained breathing equipment at strategic

locations within the mine for persons awaiting rescue. Operators would also be

required to maintain independent communications systems to the surface.

(4) Emergency tracking - Require operators to implement an electronic

tracking device for rescue and recovery, and each person in an underground coal

mine would be provided with a portable device to communicate with the surface and

mine rescue teams.

Penalties

Requires the Labor Secretary to prescribe a minimum civil penalty of up to $10,000

for a violation of the health and safety standards in instances where an operator

displays “negligence or reckless disregard” of the standards. The Secretary is also

directed to establish a penalty of up to $100,000 in instances where an operator fails

to expeditiously provide notification of any accident where rescue work is

necessary.

Prohibited Practices

The bill reaffirms the existing statute’s prohibition on using entries which contain

conveyor belts to ventilate work areas in underground coal mines. When mines are

arranged this way, and a fire breaks out on a belt, the belt tunnel can carry flames

and deadly gases directly to the miners' work area, or to vital evacuation routes.

Technological Advances

An Office of Science and Technology Transfer would be established within the Mine

Health and Safety Administration to conduct research and development to advance

new technologies for underground coal miner health and safety.

Miner Ombudsman

The position of Miner Ombudsman would be established within the Labor

Department’s Office of Inspector General to ensure that coal miners may

confidentially report mine safety and health violations.

Mr. OWENS. In closing, I want to welcome Mr. O’Dell, who directs 

Occupational Health and Safety at the United Mine Workers of 

America. As we will hear from Mr. O’Dell, who spent some 20 years 

as an hourly employee in coal mines, we know how to prevent 

these tragic mine workers’ deaths. 

I look forward to hearing his testimony and the testimony of the 

other witnesses. Thank you. 

Chairman NORWOOD. Thank you very much, Mr. Owens. And you 

know, just so we are fair and balanced, it should probably be said 

that the MSHA budget has risen 40 percent over the past decade, 

and mine safety funding has increased $30 million under President 


rahall_2.eps
11

Bush. I just think that probably ought to be in the record, because 

it is true. 

Subcommittee members, we have a very distinguished panel of 

witnesses today, and I would like to introduce them to you. First, 

we have Mr. Robert Friend, who is acting deputy assistant secretary at the Mine Safety and Health Administration. 

Mr. Friend joined MSHA in 1978 as a metal/non-metal inspector. 

He worked in several MSHA regions before joining headquarters. 

He is a certified mine safety professional, as recognized by the 

International Society of Mine Safety Professionals. 

Mr. Friend, you are most welcome. 

Next, we have Mr. Ray McKinney. He is the administrator for 

the Coal Mine Safety and Health at the Mine Safety and Health 

Administration. Mr. McKinney joined MSHA in 1976 as a coal 

mine inspector. He is a certified mine safety professional. And what 

I like, he was a coal miner and a member of a mine rescue team 

prior to joining MSHA. 

In addition, he has received the Department of Labor’s Valor 

Award for the safe rescue of a miner trapped in Scotia Coal Company’s Upper Taggart Mine. 

And we certainly congratulate you on that. 

Next we have Mr. Dennis O’Dell. He is the administrator for the 

Occupational Health and Safety for the United Mine Workers of 

America. Mr. O’Dell worked in all aspects of coal mining before becoming a member of the UMWA leadership. 

Mr. O’Dell is an instructor at the National Mine Academy in 

Beckley, West Virginia and was appointed to the Mine Safety and 

Health Research Advisory Committee in 2006. He has been a fulltime representative of the UMWA for 11 years. 

Lastly, we are happy to have Mr. Bruce Watzman—is vice president of safety and health and human resources for the National 

Mining Association. Mr. Watzman holds a master’s degree in environmental health management. He has worked for the National 

Mining Association and its predecessor, the National Coal Association, since 1980. 

Mr. Watzman is a recognized expert in the field and was also recently appointed as a member of the mine safety and health research advisory committee. 

A quick note: Although both Mr. Friend and Mr. McKinney are 

appearing before us today, only Mr. Friend will present an opening 

statement. Both gentlemen, however, will be available for your 

questions. 

And as you see, committee, we have a very distinguished group. 

And we are here to learn from you gentlemen today. 

I want to remind the members, however, that we will be asking 

questions of the witnesses after all four of you testify. In addition, 

Committee Rule 2 imposes a 5-minute limit on all questions. 

Gentlemen, I think all of you are familiar with the timers. I just 

do not like cutting people off at all. It makes me ill at ease. If you 

can try to sort of see that caution light come on, we really would 

appreciate it. 

And with that, Mr. Friend, you are recognized now for 5 minutes. 

12

STATEMENT OF HON. ROBERT FRIEND, ACTING DEPUTY ASSISTANT SECRETARY, MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR 

Mr. FRIEND. Thank you, Mr. Chairman. Mr. McKinney and I are 

pleased to appear before you today to discuss the work of the Mine 

Safety and Health Administration. We appreciate your interest in 

MSHA and the opportunity to share with you the current activities 

in which the agency is engaged. 

In recent years, the mining industry has experienced historic 

lows in injury and fatality rates. In 1978, the first year MSHA operated under the new mine act, 242 miners died in mining accidents. Last year there were 57 fatalities, 22 at coal mines and 35 

at metal and non-metal mines. 

From 2000 to 2005, the mining industry as a whole experienced 

a 33 percent decrease in fatal accidents nationwide, a 42 percent 

decline in coal mines. The coal mine lost time injury rate has declined one-third over the past 5 years. These are important and 

compelling statistics that put the current state of mine safety and 

health in this country in its proper perspective. 

MSHA inspectors vigorously enforce the law. With the support of 

the entire agency, last year MSHA issued the highest number of 

citations and orders since 1994. 

In recent years, in order to gain compliance, MSHA has increased its use of withdrawal orders, which is a powerful tool that 

requires miners to be withdrawn from areas affected by a violation. 

Many times this also results in lost production. 

During the last 5 years, the number of withdrawal orders increased 20 percent over the previous 5 years. MSHA issued more 

withdrawal orders in both 2004 and 2005 than in any year since 

1994. 

It is important to note that any MSHA violation must be abated 

within a specified time frame and before any penalty is assessed. 

In the case of withdrawal orders, the hazard must be abated before 

miners are allowed to return to work in the area or activity affected by that order. 

Recent statistics show our strong enforcement record very strongly. From fiscal year 2000 to fiscal year 2005, total citations and orders issued by MSHA at all mines increased five percent. Total citations and orders issued at coal mines increased by 19 percent. 

Total significant and substantial citations and orders issued at coal 

mines increased by 13 percent. 

However, I want to make something clear. And diligently and 

vigorously as MSHA inspectors enforce the law, MSHA does not 

have the authority to preemptively close entire mines because of 

the number or the frequency of violations. We do not have that authority under the mine act. 

While we stand by our record, we know there is more to do. We 

are now conducting thorough investigations of the recent tragic accidents at Sago and Alma Mines. We are determined to learn lessons from those accidents that can help us to continue to improve 

mine safety and health. 

We are happy to respond to your specific questions about these 

two incidents, keeping in mind that this is an ongoing investigation 

13

and it would be inappropriate at this stage to speculate on the root 

causes of those accidents. 

Although there have been great improvements in mine safety 

and health, as long as there is one fatality or one ill or injured 

miner, we know we have more work to do. We must continually 

seek new and improved accident-prevention measures, and we 

must give miners who are involved in accidents every chance for 

survival. 

Some of the areas we are working on to achieve that goal include 

new rulemaking and mine technology evaluations. 

I want to make sure that people know that MSHA will hold a 

public meeting on Monday, March 13 at the National Press Club 

in Washington, D.C. to get comments on two specific topics covered 

in our request for information. Those are technology used for underground communications and tracking of underground miners. 

We are also evaluating the efficacy and large-scale permissibility 

of existing advanced underground mine communications and tracking systems currently used in Australia and in a small number of 

U.S. coal mines. 

MSHA is reexamining mine rescue issues, and we are working 

jointly with mine industry representatives to standardize mine 

emergency procedures related to mine rescue organization, lines of 

communication and lines of authority. 

I would like to turn now to the question of MSHA resources. I 

have seen recent reports that cite the decrease in the number of 

mine enforcement personnel as evidence of an indifferent attitude 

toward mine safety and health. 

I want to assure you that MSHA currently has sufficient resources to conduct the inspections mandated by the mine act. The 

number of federal mine enforcement personnel has remained relatively constant over the last 10 years, from a low of 902 in 1998 

to a high of 986 in 2003. 

We have shifted some resources into the metal and non-metal 

area as the workload has changed between these two industry sectors. While the number of coal enforcement personnel declined 15 

percent over the last 10 years, the number of coal mines decreased 

24 percent during that same time period. 

The president has requested sufficient funding levels for MSHA 

to conduct the required inspections of the mine, requesting an increase in the agency funding every year. 

I want to conclude with something that bears repeating time and 

again, something that everyone should understand. Every single 

employee at MSHA is dedicated heart and soul to the agency’s mission. 

Every employee of the MSHA lives and breathes for the day 

when there are no fatalities, no injuries and no occupational illnesses among the country’s miners. Every employee at MSHA 

strives every day to reach that goal, sending every miner in this 

country home to family and friends at the end of every shift, every 

day. 

We will not rest until that happens. Thank you. 

[The statement of Mr. Friend follows:]

14

Prepared Statement of Robert M. Friend, Acting Deputy Assistant 

Secretary of Labor for Mine Safety and Health 

Mr. Chairman: I am pleased to appear before you today to discuss the ongoing 

work of the Mine Safety and Health Administration (MSHA). MSHA works diligently to promote mine safety and health. We want nothing more than to send every 

miner home safely at the end of every shift, every day. 

We have been moving closer to that goal every year. In recent years, the mining 

industry has experienced historic lows in injury and fatality rates. In 1978, the first 

year MSHA operated under the new Mine Act, 242 miners died in mining accidents. 

Last year, there were 57 mining fatalities, 22 at coal mines and 35 at metal and 

nonmetal mines. From 2000 to 2005, the mining industry experienced a 33% decrease in fatal accidents nationwide—with coal mines seeing a 42% decline. The coal 

mine lost-time injury rate declined one-third over the last five years. These are important and compelling statistics one must consider in placing current mine safety 

and health conditions in a proper perspective. 

MSHA inspectors vigorously enforce the law—with the support of the entire agency, top to bottom. Last year, MSHA issued the highest number of citations and orders since 1994. In recent years, MSHA increased its use of ‘‘withdrawal orders’’ to 

gain compliance with the standards. This is a powerful enforcement tool as withdrawal orders require miners to be removed from the area affected by the violation, 

often resulting in disruptions to production. The number of withdrawal orders increased 20% over the last five years when compared to the previous five years. 

MSHA issued more ‘‘withdrawal orders’’ in both 2004 and 2005 than in any year 

since 1994. It is important to note that any MSHA violation must be abated within 

a specified time frame before the penalty is assessed. In the case of withdrawal orders, the hazard must be abated before miners are allowed to work in the area or 

activity affected by the hazard. 

The statistics show our strong enforcement record very clearly. From FY2000 to 

FY2005: 

• Total Citations and Orders issued by MSHA at all mines increased by 5% 

(119,183 to 125,161) 

• Total Citations and Orders issued at coal mines increased by 19% (56,870 to 

67,756) 

• Total ‘‘Significant and Substantial’’ Citations and Orders issued at coal mines 

increased by 13% (23,586 to 26,717) 

• MSHA enforcement personnel have significantly increased the issuance of withdrawal orders to coal mine operators who exhibit an unwarrantable failure to comply with the regulations. Unwarrantable failure orders are one of the most severe 

enforcement actions inspectors can take and in each of the last two years MSHA 

inspectors issued more such orders than in any year in the last ten years. 

While enforcement activity and the number of miners went up from 2000 to 2005, 

the number of coal mines fell. There were 2,124 coal mines in 2000 and 1,982 in 

2005 (through the third quarter) and 108,098 coal miners in 2000 and 112,449 in 

2005 (through the third quarter). Clearly, MSHA inspectors continue to vigorously 

enforce the law—with the support of the entire agency, top to bottom. 

I want to make something clear. MSHA’s inspectors diligently and vigorously enforce the law. However, the Mine Act does not give MSHA the authority to preemptively close entire mines because of the number or frequency of violations. Nor does 

the Mine Act include the authority to close or seize a mine because of unpaid fines 

or penalties. 

While we are proud of our enforcement and compliance record, we know there is 

more to do. We are currently engaged in a thorough investigation of the recent tragic accidents at Sago and Alma Mines. We are determined to learn from these accidents. 

First, I want to publicly recognize the mine rescue teams who responded to the 

accidents at Sago Mine and Alma #1 Mine. These teams demonstrated exceptional 

bravery and professionalism, and they should be commended for their efforts, as 

well as for their dedication to their fellow miners. 

I would like to give you an update on the Sago Mine and Alma Mine #1 accident 

investigations. We have finished mapping the underground areas of the Sago mine 

and have completed nearly all of the witness interviews. Thus far, MSHA and representatives from the State of West Virginia have interviewed forty-six individuals. 

We have completed an evaluation of the geology of the roof in the abandoned area 

of the mine where the explosion occurred. In conjunction with the National Institute 

for Occupational Safety and Health (NIOSH), we are developing a protocol to test 

the materials used in the Sago mine to seal the area where the explosion occurred. 

At this time we have no information that would suggest that the explosion is related 

15

to any conditions that MSHA enforcement personnel observed and cited at the mine 

before the explosion. 

We have completed the investigation of the underground areas of the Alma #1 

mine with the exception of the immediate vicinity where the fire occurred. There 

are significant roof falls in this area that will have to be removed before the underground portion of the investigation can be completed. At this time we have interviewed 14 individuals and the remaining interviews should be completed within the 

next several weeks. 

As standard operating procedure, MSHA conducts an internal review after every 

major accident. We will look carefully to see if MSHA followed its own policies and 

procedures with respect to Agency activities prior to and during the accident. This 

report will be shared with this committee and made public. MSHA has always 

viewed its internal review process as an opportunity to take a hard and honest look 

at how we do our job and to use that information to improve how we do business. 

Past reviews have been comprehensive and objective examinations that resulted in 

responsible recommendations for improvement. The Government Accountability Office and the Department’s Office of the Inspector General are also conducting independent reviews of various aspects of MSHA’s programs. 

Despite the progress the mining industry has achieved in the area of health and 

safety, there is always room for improvement. The recent fatalities in West Virginia, 

along with other recent fatalities, are vivid reminders that we must continually seek 

new and improved accident prevention measures. And when accidents occur, we 

need to give miners the best possible chance to survive. I want to share some of 

the actions MSHA is currently taking in the areas of rulemaking, mining technology, mine rescue operations, and civil penalty assessments. 

Emergency Temporary Standard 

MSHA’s safety and health standards are constantly being reviewed and adjustments made to improve them or address newly recognized hazards. As a direct result of the recent two West Virginia accidents, we will soon be issuing an Emergency Temporary Standard to improve safety in underground mines in the areas of: 

underground supplies of oxygen generating breathing devices, training, lifelines, and 

accident notification. 

Technology 

There has been much discussion surrounding the availability of technology and 

equipment that, if available to miners during and after fires and explosions, could 

increase their chances for survival. MSHA constantly searches for and evaluates 

emerging technologies that can be used to protect miners. On January 25, 2006, 

MSHA published in the Federal Register a Request for Information (RFI) on Underground Mine Rescue Equipment and Technology. 

MSHA is currently in the process of evaluating advanced underground mine communication and tracking systems. The Personal Emergency Device (PED) system is 

a one way ‘‘through the earth’’ communication system used in Australia, but only 

used in about a dozen underground mines in the U.S. MSHA is evaluating the PED 

at four different U.S. underground coal mines, and plans to evaluate the system at 

the only U.S. mine with a surface-mounted antenna. Information on PED performance will also be collected in Australian coal mines. Although the PED could send 

evacuation instructions to miners in the early stages of a fire, system limitations 

already noted in MSHA’s field evaluations may seriously compromise the reliability 

or true usefulness of the PED during a U.S. mine emergency. These shortcomings 

include the vulnerability of commonly-installed underground antennas in the event 

of a fire or explosion, signal loss issues, range limitations, and potential interference 

with other mine communication systems. 

The Tracker Tagging System is an MSHA-approved tracking system for use in underground mines. A remote unit, carried by a miner, transmits its location to a ‘‘beacon’’ receiving unit as the miner passes the beacon. Tracking of miners is limited 

to identifying their location in the ‘‘zone’’ between two beacons where any given 

transmitter is located, and beacons are commonly spaced at 3,000—4,000 ft. intervals. While some have advocated mandating its use in underground mines in the 

U.S., little is known about the system’s performance. There are no underground 

mines in the U.S. using the Tracker Tagging System. While it is used in several 

mines in Australia, it is used in just one underground coal mine in that country, 

and one coal mine in China. 

Both the Tracker Tagging system and the PED system must be further evaluated 

and their effectiveness tested before rushing into a decision to mandate their use 

in underground mines. To that end, in a cooperative effort with the manufacturer 

of both systems, MSHA and the West Virginia Board of Coal Mine Health and SafeVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
16

ty will visit four mines in Australia this month to conduct further field evaluations 

of the two systems. The issues reported in U.S. mines regarding signal loss or 

‘‘shadow’’ zones will be further investigated to accurately determine the nature of 

these anomalies. 

Other available communication technologies for consideration are actively sought 

through the RFI. MSHA is soliciting technical presentations or written comments 

on underground communications and systems for tracking underground miners and 

will hold a public meeting specifically for that purpose on March 13th at the National Press Club in Washington, D.C. We are hopeful that the information gathered 

at this meeting, together with the conclusions drawn following the field evaluations 

of the PED and Tracker systems in both the United States and Australia, will help 

direct MSHA and all other concerned parties in our efforts to provide the best available communications technologies to miners in the event of an emergency underground. 

Furthermore, in response to the recent RFI noted above, MSHA has received more 

than 70 proposals from manufacturers and distributors of emergency communication 

and tracking systems. Additional proposals continue to come in on a daily basis. 

MSHA’s Technical Support Directorate is currently reviewing these products and 

proposals and will assist interested manufacturers in obtaining approval for the 

equipments’ use in underground mines. For our initial reviews we are prioritizing 

the emergency communications or tracking systems that do not rely on a wire backbone and that have the greatest potential to remain functional in the event of a 

roof-fall, inundation, fire, or explosion. From the over 70 proposals received, MSHA 

has initially selected several promising communication systems to evaluate based on 

the following criteria: precise tracking and 2-way voice preferred capability; survivability in a fire or explosion; current availability; and capability of complying with 

MSHA requirements. 

To help expedite and standardize the evaluation of these existing and promising 

technologies, a mine communications partnership is being formed with membership 

consisting of the National Institute for Occupational Safety and Health (NIOSH), 

MSHA, the Bituminous Coal Operators Association (BCOA), the United Mine Workers of America (UMWA), the United Steelworkers, the National Mining Association 

(NMA), and the State of West Virginia. The primary goals of this partnership are 

to establish general performance expectations for mine emergency communications 

systems, establish uniform and fair criteria for testing and evaluating systems, and 

to conduct in-mine tests on systems. A secondary goal is to identify gap areas that 

should be addressed through research. 

The State of West Virginia, MSHA, and NIOSH are co-sponsoring the International Mining and Health Safety Symposium on April 20-21, 2006. The symposium will bring together technology developers, equipment manufacturers, the Federal Government, the State of West Virginia, organizations representing the mining 

community, and other countries to discuss the development, approval, and adoption 

of state-of-the-art technologies and mining methods. Wheeling Jesuit University will 

host the symposium at the Robert C. Byrd National Technology Transfer Center and 

the Civic Center in Wheeling, WV. 

MSHA is working with the BCOA and the NMA to jointly develop a template on 

mine rescue preparedness. This document will describe standardized mine emergency procedures related to mine rescue organization, lines of communication, and 

establishing lines of authority. 

In addition, MSHA has sought information from the entire mining community, including labor, industry, academia, and local first-responders on improvements to 

mine rescue preparedness. 

Civil Penalty Assessments 

Assessments are civil penalties (fines) levied on mine operators, independent contractors working on mine property, agents of operators or contractors, or, in some 

cases, individual miners, for violating safety or health standards or sections of the 

Mine Act. The process of determining penalty amounts is governed by the criteria 

included in the Mine Act and federal regulations. The penalty assessment process 

is administered by an MSHA office separate from the enforcement arms of the agency to ensure the objectivity of the fines proposed for violations. The Office of Assessments implemented the most recent guidelines for proposing civil penalties in 2003. 

These penalties range from $60 to a statutory maximum of $60,000. The $60 fine 

is generally imposed for less serious, timely abated violations that occur in mines 

with low violation histories. More serious violations may receive a computer-generated regular formula assessment that assigns points based on criteria specified in 

the Mine Act. The most egregious violations may receive higher assessments with 

17

proposed penalty amounts determined by assigned specialists. The statutory maximum of $60,000 can be imposed for regular formula or special assessments. 

Proposed civil penalty amounts are determined using five statutory criteria in the 

Mine Act: • the size of the operation, • the operation’s history of violations, • the negligence of the operator, • the gravity of the violation, and • the degree of good faith the operator exhibits in correcting the violation. 

A sixth statutory criterion, the ability of the operator to continue in business, is 

taken into account only after the amount of the fine is proposed and presented to 

the operator. The operator must provide convincing evidence of financial hardship 

and inability to continue in business. In these cases, MSHA may adjust the fine. 

If the mine operator thinks the proposed penalty is too high, the operator can contest the penalty. The contested penalty first goes to an administrative law judge of 

the Federal Mine Safety and Health Review Commission who can uphold the original penalty, vacate the penalty, reduce the penalty, or (in rare instances) increase 

the penalty. If the operator is dissatisfied with that result, the operator can ask the 

full Federal Mine Safety and Health Review Commission to hear the case. If the 

Commission takes the case and the operator is dissatisfied with that result, the operator can appeal to the Court of Appeals. Sometimes this process takes several 

years. A case may ultimately go to the Supreme Court. 

Operators have 30 days to pay or contest their fines once they are assessed. If 

the fine is not contested, it is considered a final order of the Commission after the 

30 days. If these fines are not paid within 30 days, MSHA begins contacting the 

operator and 8% interest begins to accrue. If the debt remains unpaid for 90 days, 

an additional non-payment penalty of 6% begins to accrue, retroactive to the date 

the fine became final. 

Penalties are considered debts under the provisions of the Debt Collection Improvement Act of 1996. When a debt is delinquent more than 180 days, MSHA refers the debt to the Department of the Treasury for collection. Treasury may attempt to collect the debt directly, refer the debt to a private collection agency, collect 

the debt by offsetting Federal payments made to the debtor, or, ultimately, refer the 

debt to the Department of Justice for collection. If this process is unsuccessful, 

MSHA may terminate collection of the debt and report it to the Internal Revenue 

Service to be included in the company’s income tax liability as taxable income. 

MSHA cannot close a mine if it has too many fines or does not pay the fines assessed. The Mine Act does not give MSHA that authority. MSHA is neither soft on 

enforcement nor soft on assessments. This Administration stands by its assessment 

record. Over the last five years, MSHA proposed 21 percent more penalties at the 

$10,000 or higher level than during the previous five years. The total dollar value 

was up by 16 percent during this same period of time. 

Approximately 6% of citations and orders are contested. Litigation at the Commission or in federal court impacts a large percentage of contested proposed assessments. For assessments contested between 1995 and 2005, 46 percent of the penalties were reduced and the average reduction in the penalty was 47 percent. The 

Administration has already proposed legislation to increase the maximum civil penalty for flagrant violations from $60,000 to $220,000. Additionally, I been directed 

to re-examine the penalty amounts and MSHA will soon propose rule making revisions to the penalty schedule (subject to the statutory $60,000 penalty cap). 

MSHA has also filed two lawsuits in February in the U.S. District Court for the 

Eastern District of Kentucky seeking injunctions against two separate mine operators who have chronically failed to pay assessed civil penalties for violations of the 

Mine Act. The complaints ask that both operators be enjoined from failing to pay 

penalties for future violations of the Mine Act and that both be required to post a 

bond with the court to guarantee future compliance with the law. MSHA is also 

evaluating other cases involving operators who have refused to pay civil penalties 

and will seek injunctions against them where appropriate. 

Finally, it is important to note that any MSHA violation must be abated within 

a specified time frame even before the penalty is finally assessed. In the case of 

withdrawal orders, the hazard must be abated before miners are allowed to work 

in the area or activity affected by the hazard. 

Every employee at MSHA is dedicated heart and soul to the agency’s mission. 

Every employee at MSHA lives and breathes for the day when there are no fatalities, no injuries, and no occupational illness among all of this country’s miners. 

Every employee at MSHA strives every second of every day to reach our goal: sending every miner in this country home to family and friends, safe and healthy, at 

the end of every shift, every day. We will not rest until that happens. 

18

Thank you.


friend1.eps friend2.eps
19

Chairman NORWOOD. Thank you very much, Mr. Friend. 

Mr. O’Dell, you are now recognized for 5 minutes. 

STATEMENT OF DENNIS O’DELL, ADMINISTRATOR FOR DEPARTMENT ON OCCUPATIONAL HEALTH AND SAFETY, 

UNITED MINEWORKERS OF AMERICA 

Mr. O’DELL. Mr. Chairman, members, I want to thank you for allowing me this opportunity to appear before your committee. I am 

testifying on behalf of the United Mine Workers of America. 

I come out of the coal fields having been an underground coal 

miner for 19 years as well as both a local union international safety representative and a local union safety committee man. 

I participated in many recent and most tragic mining disasters 

of the last decade, including the Jim Walter’s No. 5 mine explosion 

in September of 2001 and the Sago Mine disaster earlier this year. 

We are here today to review the performance of the Mine Safety 

and Health Administration, known as MSHA. The UMWA recognizes that MSHA includes many hard-working civil servants whose 

efforts coal miners deeply appreciate. However, we believe MSHA’s 

top policy makers have fallen short. 

In the hearing room this afternoon are a number of active miners 

from coal mining states that sit behind us. They are here because 

they care deeply about miners’ health and safety. They join me in 

urging Congress to ensure that MSHA aggressively protects miners’ health and safety so that they can perform their job safely and 

return home to their families each and every day. 


friend3.eps
20

MSHA’s not developing enough new mandatory standards to protect miners’ health and safety, and through policy it is allowing operators to pursue practices that compromise rather than enhance 

miners’ health and safety. 

We hope that this committee can help redirect MSHA so that it 

will engage in the principal activities Congress mandated when it 

crafted the mine act shortly after 78 miners died at Farmington, 

West Virginia in 1968. 

These laws were written to protect the health and safety of miners after this major disaster occurred, yet mining still remains the 

second most dangerous industry in this country. Every year, thousands of miners remain disabled and dying from black lung disease, while many other miners die in mining accidents every year. 

Most often, mining accidents claim the lives of one or two miners 

at a time, from roof falls, equipment failures, electrical problems 

and other accidents. In just the first 6 weeks of 2006, in addition 

to the 12 miner who perished at the Sago Mine and the two who 

died in the January 19 mine fire at Massey’s Aracoma on the No. 

1 mine, seven other coal miners also have died one at a time. 

It is also interesting to note that there are countless near-misses 

that occur on a regular basis. Since August of 2000, MSHA records 

show there are well over 400 mine fires, ignitions, explosions and 

inundations that too far easily could have developed into significant 

disasters and fatalities, some of which has just recently occurred 

last week at the VP 8 mine in Virginia and Shoal Creek Mine in 

Alabama. 

Many other incidents like these likely went unreported. As a result, tragedies at the Sago and the Alma No. 1 coal mine demonstrate, there is a serious void in the regulatory framework for 

underground miners confronting a mine emergency. 

While there is a lot yet to be determined about these incidents, 

the note that Sago miner George Junior Hamner wrote to his wife 

and daughter reveals that most miners survived the initial explosion at the Sago Mine. This demonstrates that those miners had 

no information about where to find fresh air or about how they 

might have been able to exit the mine. 

Though Congress specifically suggests in 1969 that the secretary 

consider promulgating a rule requiring rescue chambers for miners 

to find shelter in an emergency, we are unaware of any substantial 

efforts that have been made to pursue this option since the act was 

written. 

At the Alma Mine, miners were killed after a mine fire erupted 

on a belt that was used to ventilate the mine. If belt air had not 

been permitted, and if belts were not flammable, or if the miners 

had more oxygen, perhaps the outcome of these miners’ fate would 

have been different. 

These deficiencies in miners’ health and safety are all ones 

MSHA has known about for many, many years. Most of them have 

been known since the coal act was passed in 1968, over 37 years 

ago. 

Problems of no communication, the inability to locate underground miners, insufficient self-rescuers were all noted as problems 

that confronted miners as far back as Farmington No. 9, the Jim 

Walter’s No. 5 mine, Sago Mine and the Alma No. 1 mine. ExperiVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
21

ence demonstrates that most miners will not have them available 

when the next emergency strikes. 

Unfortunately, under former assistant secretary MSHA, David 

Lauriski, 17 proposed rules were scrapped. I attached a list of 

those withdrawn rules with my testimony. 

Along with some of those protections that would have—along 

with some of those protections, it would have helped miners who 

perished at Sago and Alma be able to avoid their disastrous fates. 

Examples: As a rule that would have imposed new procedures 

and requirements for flame-resistant conveyor belts, to reinstate 

the non-use of belt air to ventilate working areas, a rule concerning 

improvements for self-rescuers, which we only got in 1982. And it 

took us 12 years to 20 years to be able to have Congress enact that 

under a court order. 

Even with the recent spate of coal mining fatalities, I consider 

the industry lucky to not have suffered more injuries and deaths. 

This is because for too many years, the agency has not been writing new rules to protect miners and has not been doing a good job 

enforcing the rules it already has. 

Mining is dangerous work. When you at the agency take that serious, when Congress first said in the mine act that they declare 

the first priority of all in the coal and other mining industry must 

be the health and safety of its most precious resource, the miner, 

we take that serious. 

Everyone else associated with the mining industry must reestablish miners’ health and safety as their top priority. Also, senseless 

deaths and injuries must stop. I urge you to require MSHA to do 

in 2006 all that Congress demanded in 1969 and again in 1977. 

Regulations that were in the pipeline in 2001 and 2002 should 

be reactivated and finalized in a timely fashion. New regulations 

to protect miners both while on the job and on emergency strike 

must be promulgated. All such regulations must then be enforced 

regularly and aggressively. 

I thank you for your interest in miner safety and will be happy 

to answer any questions you have later. 

[The statement of Mr. O’Dell follows:]

Prepared Statement of Dennis O’Dell, Administrator, Department of 

Occupational Health & Safety, United Mine Workers of America 

Thank you for allowing me this opportunity to appear before your Committee. I 

am testifying on behalf of the United Mine Workers of America (‘‘UMWA’’), the 

union that has been an unwavering advocate for miners’ health and safety for 116 

years. I come out of the coal fields, having been an underground coal miner for 19 

years, as well as both a Local Union and International safety representative. I have 

participated in many of the recent and most tragic mining disasters of the last decade, including the Jim Walters No. 5 mine explosion in September 2001, and the 

Sago Mine disaster earlier this year. 

Miners’ health and safety has been in the headlines for much of 2006 because so 

many coal miners have perished. In fact, nearly as many miners died in just the 

first six weeks of 2006 as in all of 2005. 

We are here today to review the performance of the Mine Safety and Health Administration (‘‘MSHA’’). The UMWA recognizes that MSHA includes many hardworking civil servants whose efforts coal miners appreciate. However, MSHA’s top 

policy-makers have fallen short. They have not been doing their job protecting and 

enhancing miners’ health and safety. 

In the hearing room this afternoon are a number of active miners from coal mining states. They are here because they care deeply about miners’ health and safety. 

They join me in urging Congress to ensure that MSHA aggressively protects miners’ 

22

health and safety, so that they can perform their jobs safely and return home to 

their families each and every day. 

Focusing on MSHA’s rulemaking responsibilities, it is apparent that the Agency 

has failed to promulgate rules that will better protect miners. MSHA has enacted 

rules that help operators’ productivity while it withdraws potential rules that it 

should promulgate to advance miners’ health and safety. 

Coal is being produced at record high levels. At the same time, far fewer miners 

are needed to extract the mineral. However, MSHA has not promulgated rules to 

keep pace with record productivity and the new mining techniques, which sometimes introduce new hazards. 

I will first review how current mine safety laws came into being; and then describe a number of ways in which MSHA has failed to protect miners’ health and 

safety: it is not developing enough new mandatory standards to protect miners’ 

health and safety, and through ‘‘policy’’ it is allowing operators to pursue practices 

that compromise—rather than enhance—miners’ health and safety. We hope that in 

exercising your oversight responsibilities, this Committee can help redirect MSHA 

so it will engage in the principal activities Congress mandated when it crafted the 

Mine Act. 

Shortly after 78 miners died at Farmington, West Virginia in 1968 Congress enacted the Coal Act in 1969; the legislation was then expanded to other mining industries and renamed the Mine Act in 1977. Since the Coal Act was passed, fatalities in coal mining have decreased dramatically: while over 300 miners died in 1968, 

the year before the Coal Act was enacted, fewer than 100 miners have perished in 

any single year over the last 20 years. Yet, mining still remains the second-most 

dangerous industry in this country. 

Every year thousands of miners remain disabled and dying from black lung disease, while many other miners die in mining accidents every year. Most often, mining accidents claim the lives of one or two miners at a time, from roof falls, equipment failures, electrical problems, and other accidents. In just the first six weeks 

of 2006, in addition to the 12 miners who perished at the Sago mine and the two 

who died in the January 19 mine fire at Massey’s Aracoma Alma #1 mine, seven 

other coal miners also died, one at a time. 

There are also countless near-misses that occur on a regular basis. Since August 

2000, MSHA records show there were well over 400 mine fires, ignitions, explosions 

and inundations that far too-easily could have developed into significant disasters 

and fatalities. Many other incidents likely went unreported. 

In passing the Coal and Mine Acts, Congress made it clear that a primary purpose of the legislation was to require the Secretary to promulgate mandatory health 

and safety standards, and to ensure that operators would follow all health and safety standards, including the long list of ‘‘interim mandatory standards’’ that Congress 

wrote into law. 

However, MSHA has done neither: it has not promulgated sufficient protective 

health and safety standards, and it has failed to aggressively enforce the regulations 

it has on the books. 

As the recent tragedies at the Sago and Alma No. 1 coal mines demonstrate, there 

is a serious void in the regulatory framework for underground miners confronting 

a mine emergency. While there is a lot yet to be determined about these accidents, 

the note that Sago miner George Junior Hamner wrote to his wife and daughter 

(copy attached) reveals that most miners survived the initial explosion at the Sago 

Mine. It also demonstrates that those miners had no information about where to 

find fresh air or about how they might have been able to exit the mine. In fact, miners survived for many hours, but in the end they had inadequate access to oxygen 

to survive the toxic mine atmosphere. 

Though Congress specifically suggested in 1969 that the Secretary consider promulgating a rule requiring rescue chambers for miners to find shelter in an emergency, we are unaware of any substantial efforts MSHA has made to pursue this 

option since the Act was written. Nevertheless, earlier this year just such a chamber 

was successfully used by, and saved the lives of, miners at a potash mine in Western Canada when they confronted a mine emergency. If they could rely on a rescue 

chamber to survive, why weren’t the miners at Sago and Alma afforded that same 

opportunity? 

At the Alma mine, miners were killed after a mine fire erupted on the belt that 

was used to ventilate the mine. If belt air had not been permitted, and if the belts 

were not flammable, or if the miners had more oxygen, or if they had lifelines to 

guide them out of the smoke-filled mine, perhaps we would have had a different outcome. 

These deficiencies in miners’ health and safety are all ones MSHA has known 

about for many, many years. Most of them have been known since the Coal Act was 

23

1Throughout the industry there have been problems with miners not being able to properly 

don the self-rescuer units in emergency situations. Moreover, without a rule addressing self-rescuers, technological advances of these breathing devices has been stymied. In the legislative history of the Mine Act, Congress indicated that mining regulations should be technology-driving, 

to maximize miners’ protections. We had hoped that with the promulgation of a new rule addressing self-rescuers, the existing problems would be addressed, and technological advances encouraged. The UMWA is convinced that such a rule would have been the catalyst for a new generation of self-rescuer devices. While operators are willing to invest in new technology when it 

increases production, it appears that they are not so willing to invest when in miners’ health 

and safety. 

Continued

passed in 1968, over 37 years ago. In fact, in 1968 rescuers could not locate all the 

miners killed in the Farmington disaster and 19 remain entombed in that mine. The 

problems of no communications, the inability to locate underground miners, and insufficient self-rescuers were all noted as problems that confronted miners, including 

the 13 who were killed at the Jim Walters No. 5 mine on September 23, 2001. The 

need for these improvements has been talked about after too many tragedies. Long 

ago, it was time to stop talking and time to take action to implement changes that 

would help miners survive emergencies. 

We do not have to wait for 100% guarantees; we need to enhance a miner’s chance 

of escaping an emergency, or surviving if trapped. Much technology is already available that would help miners survive a disaster like what confronted the miners at 

Sago and Alma. More oxygen, better communications, and the ability to locate the 

trapped miners—these improvements may well have made a critical difference in 

those emergency situations. 

It is interesting that those advocating the status quo will say that some of the 

protections we seek, like supplemental oxygen, and better communications, are not 

worth pursuing because they may be damaged in the event of an explosion or other 

emergency. However, if the miners survive that initial event, they may well be able 

to escape or survive if they are provided additional resources. At the Sago Mine, 

miners survived for many hours and may well have been able to escape if they had 

been directed out; or they might have survived if they had supplemental oxygen 

stored nearby. At the Jim Walters mine, those killed had inadequate information 

largely because the primary method of communication was interrupted; if secondary 

communications (i.e., supplemental wireless devices) had been available, it is possible more would have survived. Shouldn’t they be given their best chance of surviving? 

Experience demonstrates that unless MSHA requires operators to provide these 

protections, most miners will not have them available when the next emergency will 

strike. Since the devastating coal mining tragedies of 2006 captured the nation’s attention, a number of manufacturers of various technologies and others from various 

backgrounds have submitted information about various devices, and suggestions 

about techniques that might be able to help miners survive an emergency. I know 

I have received a number of interesting proposals, and that MSHA has received 

many more in response to its request for such information. While the UMWA supports MSHA’s action to undertake a review of such information and technologies, 

why didn’t the Agency do this decades ago? Why do we have to have a discussion 

about such simple solutions as more oxygen and the ability to locate miners underground in the 21st Century? 

Active miners and family members of those killed at the Jim Walters’ mine testified about the need for better communications, the need to be able to locate miners 

underground, and the need for more oxygen supplies stored underground, during a 

series of hearings that MSHA conducted in February, 2003. Transcripts from those 

hearings are available through MSHA’s web page. What came from all those good 

suggestions? Nothing. Sadly, it came as no surprise to me when these very same 

problems and deficiencies confronted miners trapped in the Sago and Alma No. 1 

mines; MSHA had not advanced any such protections in the intervening years. 

In fact, MSHA has been going backwards in providing some of these protections. 

Assistant Secretary for MSHA David Lauriski scrapped 17 proposed rules on topics 

MSHA had identified as needing attention. I attach a list of those withdrawn rules. 

Among them were some of the protections that might have helped the miners who 

perished at Sago and Alma. Offering no explanation for its decision, on September 

24, 2001 MSHA withdrew a rule that would have imposed new procedures and requirements for flame-resistant conveyor belts, even though the rule was then close 

to completion. On that same day, citing ‘‘resource constraints and changing safety 

and health regulatory priorities,’’ MSHA withdrew its ‘‘pre-rule’’ concerning self-rescuers that had been among the Agency’s rulemaking agenda since 1999.1

24

We note that reports of the recent coal mine disaster in Mexico indicated that miners had 

access to at least six hours of oxygen, and there were additional units available underground. 

If so, their oxygen resources far exceeded what must be provided to miners in this country. 2 It took from three to five hours for the first rescue teams to arrive at Sago. That mine does 

not have its own rescue teams, even though MSHA regulations require mines to ‘‘establish at 

least two mine rescue teams which are available at all times when miners are underground, 

or * * * [make an arrangement] for mine rescue services which assures that at least two mine 

rescue teams are available at all times when miners are underground.’’ 30 CFR § 49.2. (The regulation includes an exception for small and remote mines, but does not apply to the Sago mine.) 

That same regulation specifies that teams ‘‘shall be considered available where teams are capable presenting themselves at the mine site(s) within a reasonable time after notification. * * *’’ 

Id. Given that it took three to five hours for the first mine rescue teams to arrive at Sago, it 

is apparent that the current system is not acceptable. 

The UMWA submits that every underground coal mine should have mine rescue capabilities 

on site. These team members should be employees at the facility who would be acutely familiar 

with the mine. These individuals would not only be best able to carry out many of the duties 

required in these situations, but would also be uniquely qualified to brief additional offsite 

teams that may be necessary to complete the rescue. For even small and remote mines, MSHA 

should require mine rescue teams to be ready when disasters strike. No trapped miners should 

ever again have to wait three to five hours for rescue efforts to begin. 

Instead of promulgating a rule that would improve rescue teams’ availability and capabilities, 

MSHA eliminated further work on rescue teams regulations. Meanwhile, it permits operators 

to expand on the ill-advised practice of contracting out such work. Withdrawing the proposed 

rule effectively eliminated any meaningful improvement in comprehensive mine rescue activity, 

but it also afforded some mine operators the opportunity to disband teams so they could increase 

their profits. 

One year later, MSHA withdrew a pre-rule that would have addressed problems 

related to diminishing mine rescue capabilities.2 The mine rescue system needs 

MSHA’s attention. It is time for MSHA to promulgate rules that would compel the 

expansion of mine rescue capabilities, and require mine rescue teams at each and 

every mine, regardless of the mine size or location. 

This current administration also withdrew a number of other rules that were at 

various stages of the rulemaking process. Some of the most compelling ones concern 

air quality, miners’ exposure to airborne contaminants, and coal dust. The existing 

regulations utilize the same permissible exposure limits (‘‘PELs’’) that were in place 

when the Mine Act was promulgated in 1977; even MSHA recognizes them to be 

outdated and inadequate to protect miners’ health. MSHA had planned to update 

them; instead the Agency withdrew its proposed rule in September 2002. 

Another proposed rule would have enacted recommendations emanating from the 

Secretary’s 1996 Advisory Committee on the Elimination of Pneumoconiosis Among 

Coal Workers. This rule would have decreased the amount of respirable coal dust 

to which coal miners may be exposed. Reducing the allowable respirable dust exposures would both diminish miners’ likelihood of contracting black lung disease and 

it would also reduce the amount of explosive coal dust in the mine environment. 

This was in the pre-rule stage when MSHA withdrew it in September 2004. Unfortunately, the only efforts regarding coal dust that MSHA made under former Assistant-Secretary Lauriski was a proposal that would have allowed respirable dust levels to increase by four fold. After a public outcry, including from a number of Congressmen, Mr. Lauriski withdrew his ill-advised proposal. 

In September 2001, MSHA also withdrew a proposed rule that would have required the monitoring of respirable dust at all times. And MSHA stopped its plans 

to increase the required training and retraining of miners, even though the Agency 

identified this need back in 1998, and the UMWA has consistently asked for such 

increases because current requirements are inadequate. 

MSHA dropped rulemaking efforts the Agency began in January 2001 to establish 

uniform procedures for its accident investigations. Not having such procedures has 

frustrated the designated miners’ representatives in their efforts to participate in 

the investigatory interviews that took place in connection with the Sago investigation. The UMWA has been excluded from all these interviews, even though a number of active miners as well as several family members of those killed have asked 

the UMWA to serve as their representative. 

MSHA knows how to do better. The Agency itself has performed countless internal reviews and self-analyses; the federal government’s watchdog agency, the GAO, 

has given it direction, and the UMWA has communicated both formally and informally about how MSHA can and must do better. 

Only on the heels of so many coal mining disasters commanding national attention, has MSHA recently begun to initiate some potentially useful rulemaking that 

could improve a trapped miner’s ability to survive a mine accident. MSHA has announced plans to implement an emergency rule that would require more oxygen, 

lifelines, and the requirement that an operator provide MSHA with notice of a mine 

25

emergency within 15 minutes of the event. These efforts are important and we support MSHA in pursuing them to a quick resolution. The Agency has also solicited 

information about wireless technology for communicating with and locating underground miners. These are all very worthwhile. 

But we must ask, why did MSHA wait this long to pursue these issues? Why 

wasn’t it looking for these solutions ten and twenty (or more) years ago? For an 

agency with such a clear mandate as that which Congress wrote into the Mine Act—

to protect and improve miners’ health and safety, we ask you to consider how MSHA 

could have gotten so terribly misdirected. 

MSHA has been neither aggressive nor consistent in enforcing the regulations 

that already exist. It spends too much effort at ‘‘compliance assistance,’’ and too little on enforcement. 

After MSHA completed its investigation into the Jim Walters disaster, the Agency 

also performed an Internal Review of MSHA’s actions before the explosions to ‘‘improve our inspection process to better protect our nation’s miners.’’ The review compared what MSHA actually did with what the Mine Act requires it to do. A number 

of problems were identified as deficiencies ‘‘at both the district and headquarters 

level’’, deficiencies ‘‘relevant to inspection procedures, level of enforcement, plan reviews, the [Alternative Case Resolution Initiative] and accountability programs, supervision and management, and headquarters oversight.’’ The GAO also noted in a 

report issued in September 2003, when it investigated MSHA after the Jim Walters 

accident, that MSHA headquarters was not performing adequately in several key 

areas. Specifically, the GAO found MSHA failed to ensure violations cited to mine 

operators were corrected in a timely fashion. In fact, GAO found that of all the citations issued by the Agency, including those written as ‘‘significant and substantial,’’ 

despite inspector-imposed deadlines by which problems were to be abated, 48% of 

the time the Agency failed to follow-up in a timely fashion to see if the operator 

fixed the hazards. 

Unfortunately the Agency’s top managers have done little to move any of the necessary improvements from recommendation to reality. We hope that by having Congress add its voice now, along with the public’s demand for its better performance 

on the heels of Sago, Alma, and the other tragic accidents, MSHA will finally 

refocus its attention. 

In addition to the subjects that are already underway for emergency rulemaking 

(more self-rescuers and training on transferring units, lifelines to help miners evacuate the mine, and the need to notify MSHA of an emergency within 15 minutes), 

and subjects that MSHA is also actively studying (emergency communications and 

tracking systems)—all of which are long over-due for regulation—we urge MSHA to 

promulgate and implement rules that would materially contribute to miners’ health 

and safety. Without intending to be comprehensive, the issues that we identify as 

constituting the top priorities for MSHA rulemaking include: reducing miners’ exposure to respirable (coal) dust, updating permissible exposure limits for contaminants 

in the mine environment; undoing the unwise belt air rule, and requiring non-flammable belts, improved atmospheric monitoring systems, expanding the mine rescue 

team requirements and support, improving requirements for firefighting and evacuation plans, developing a nationwide emergency communications’ system for mines, 

increasing training and retraining for miners, revising MSHA’s approval and certification system for mining equipment, requiring secondary telephone lines in a separate entry, providing miners with a safer means of escape in the event of a mine 

fire, explosion, or inundation, updating and increasing fines for Mine Act violations, 

and developing uniform accident investigation procedures. MSHA should also determine whether the seals it approves are adequate (note that MSHA-approved seals 

failed at Alma although 30 USC Section 303(z) of the Mine Act requires explosionproof seals, and 30 CFR Section 75.334 and .335 provides that seals must withstand 

20 psi); the Agency also should study emergency safety chambers, as suggested in 

the Mine Act, at 30 USC Section 315. 

MSHA needs a larger budget for coal enforcement. Aside from its budget not keeping apace with inflation, instead of focusing on enforcement, in recent years MSHA 

has redirected some of its inspectors’ time towards ‘‘compliance assistance.’’ MSHA 

also needs to bolster its expertise, and prepare for the transition as many of its inspectors approach retirement. 

MSHA also has been remiss in enforcing the penalties it imposes for Mine Act 

violations. A fundamental problem is that MSHA compromises penalties far too 

often; whether at conferences held with the operator at MSHA’s district offices or 

through negotiated settlements, MSHA collects very little in the way of the fines 

it assesses. This means that operators have little incentive to pay. There has developed a culture whereby operators view MSHA fines as little more than a nuisance, 

26

a minor cost of doing business. MSHA can and must do better to ensure that its 

fines coerce compliance with the Mine Act—that is what is most needed. 

Just last month, in February 2006, MSHA initiated two injunctive actions against 

operators with large unpaid fines. This was the first time the Agency attempted 

such remedies. While we support these efforts, we also must ask, why has it taken 

this long for MSHA to put teeth into the enforcement side? 

Coal remains a vital part of our nation’s economy and a primary component of 

our energy needs. The industry is growing, and for the first time in decades, there 

are now many young coal miners. This is means there are many miners working 

with relatively little experience under their belts. 

Even with the recent spate of coal mining fatalities, I consider the industry lucky 

to not have suffered more injuries and deaths. This is because for too many years, 

the Agency has not been taking care of business. It has not been writing new rules 

to protect miners, and it has not been doing a good job enforcing the rules it already 

has. 

Mining is dangerous work. We need an Agency that takes seriously the first 

words Congress placed in the Mine Act: ‘‘Congress declares that (a) the first priority 

of all in the coal or other mining industry must be the health and safety of its most 

precious resource—the miner.’’ (30 U.S.C. Section 801.) We take that admonition seriously; everyone else associated with the mining industry must reestablish miners’ 

health and safety as their top priority, too. Senseless deaths and injuries must stop. 

I urge you to require MSHA to do in 2006 all that Congress demanded in 1969 

and again in 1977. Regulations that were in the pipeline in 2001 and 2002 should 

be reactivated and finalized in a timely fashion. New regulations to protect miners—

both while on the job and when emergencies strike—must be promulgated. All such 

regulations must be enforced regularly and aggressively. 

I thank you for your interest in miners’ safety and would be happy to answer your 

questions. 

Chairman NORWOOD. Thank you, Mr. O’Dell. 

Mr. Watzman, you are now recognized for 5 minutes. 

STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY 

AND HEALTH AND HUMAN RESOURCES, NATIONAL MINING 

ASSOCIATION 

Mr. WATZMAN. Thank you, Mr. Chairman, for the opportunity to 

be here today. At the very outset, allow me to restate our shared 

support for the fundamental tenet of mine safety and health legislation. That is, our first priority and concern must be the safety 

and health of the miner. 

We appear before you today to pledge to work with you and others in the Congress to ensure that out of the recent tragedies will 

emerge greater cooperation in pursuit of safer mines. 

The mining industry has undergone significant transformation 

that continues at an astounding pace. Safety and health programs 

have advanced and have become embedded in the mining culture. 

And we continue to adopt new technologies that advance the complimentary goals of safety and productivity. 

Since the first oil embargo in the early 1970s, the coal industry 

has answered the call to provide more coal to meet the nation’s energy needs while providing a safer work environment for our employees. Since 1970, coal production has increased 82 percent and 

coal mine fatalities have decreased 93 percent. 

And today’s reportable injury incident rate gives coal mining a 

lower rate than many other industries. No longer can coal mining 

be stereotyped as the most hazardous job in America. We take 

pride in these accomplishments, yet more can, must and will be 

done. 

27

Today I would like to discuss with you a threefold challenge. 

First, the principles we believe should guide our actions and policy 

makers based on our analysis of the partial information coming out 

of this year’s tragic events. 

Second, the need to focus on accident prevention in a changed 

and changing mining industry. And third, modernizing MSHA’s enforcement procedures to more accurately mirror actual conditions 

in the mines rather than inflexible adherence to somewhat outdated procedures. 

We have reviewed the publicly available information that has 

emerged from the events in West Virginia. In addition to the establishment of an independent commission, we have developed and 

offer for the subcommittee’s consideration as it looks at ways to advance mine safety and health through legislation the following 

principles. 

First, ensuring development and introduction of ground-penetrating communication and tracking technology. Improving emergency notification. Enhancing safety training and rescue capabilities. Providing a liability shield and indemnification for mine rescue activities. Ensuring that new requirements are accompanied by 

workable transitional time frames. Providing authority for mine operators to conduct mandatory substance abuse testing of all personnel at the mine. And providing incentives to help companies invest in equipment and training needed for enhanced mine safety 

and rescue capabilities. 

Beyond the specific guiding principles, we direct your attention 

to two overriding challenges. Today many coal mines present challenging geologic conditions. 

As mines access deeper reserves, the technologic limitations of 

historic control methodologies are readily apparent, presenting 

miners, mine operators and agency personnel with new and more 

difficult engineering challenges. 

To address these, we have initiated several partnerships with the 

National Institute for Occupational Safety and Health to examine 

new technologies to better protect miners’ health. These partnerships have brought together experts to work on practical solutions 

to mine safety and health problems confronting the industry. 

I am pleased to report that the industry recently joined with 

NIOSH and others to form a partnership on mine emergency communications. 

The members of this subcommittee and the colleagues in the respective appropriations subcommittees are very aware of the need 

to maintain a vibrant and well funded mining research program 

with the NIOSH. Recent events underscore this need. 

The federal government has an important role to play in technology development in order to bring safer, newer technologies to 

a relatively small market for safety equipment. We urge your support to strengthen this vital government function. 

In addition, certain structural changes in our regulatory approach to mine safety are necessary. Key among them is the need 

for MSHA to conduct more focused inspections and enhance the 

quality of inspections. Many of our members who operate some of 

the safest mines in the country continue to have inspectors on site 

each and every day. 

28

The misperception exists that the mine act mandate for four inspections annually of an underground mine and two annually of a 

surface mine only translate to four and two visits annually. Nothing can be further from the truth. 

MSHA statistics show that a large underground mine can have 

more than 4,000 onsite inspection hours per year. This means the 

presence of two or three inspectors each and every day the mine 

operates. 

Flexibility in inspection procedures is central in achieving the resource allocation determinations that are vital for improving the 

agency’s safety and health programs and the industry’s performance. 

Mr. Chairman, as we look to the future, we recognize that our 

ability to further advance coal mine safety and health will require 

an examination of the structural and technologic hurdles that must 

be overcome. 

Further improvement will require us to identify potentially dangerous conditions before they put miners’ safety and health in jeopardy, as well as the appropriate means to minimize those hazards. 

We look forward to working with you and the colleagues in the 

Congress as you consider legislation to address this. 

Working together, we will develop programs to train and educate 

a new generation of employees so that they can have a safe and 

productive career in an industry vital to the country’s energy markets and national interest. Thank you. 

[The statement of Mr. Watzman follows:]

Prepared Statement of Bruce Watzman, Vice President of Safety and 

Health, the National Mining Association 

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

to appear before you again to review the activities of the Federal Mine Safety and 

Health Administration (MSHA), the federal role in mine safety, and training and 

current regulatory activity. At the very outset, allow me to restate our shared support for the fundamental tenet of federal mine safety and health legislation, that 

is—our first priority and concern must be the safety and health of the miner. 

We appear before you today to pledge to work with you and others in Congress 

to ensure that out of the recent tragedies will emerge a stronger resolve and greater 

cooperation in pursuit of safer mines. Our expectation is that from this and similar 

hearings and from the exhaustive official investigations now underway * * * we can 

do better what we’ve tried hard to do well. 

Industry Safety Performance 

In order to consider what improvements are necessary to further advance miner 

safety and health, one must first review what has been achieved. Due to the tremendous commitment of all who work to provide a safe and healthy work environment for the men and women who work in our nation’s mines, mining is a much 

safer occupation. 

The mining industry has undergone a significant transformation that continues 

at an astounding pace. Safety and health programs have advanced and have become 

embedded in the mining culture. New technologies and mining methods have reduced miners’ exposure to harmful conditions, and the industry continues to adopt 

new technologies that advance the complimentary goals of safety and productivity. 

The coal mining industry takes seriously its commitment to protect its workforce. 

Since the first oil embargo in the early 1970s, the coal industry has been called 

upon to provide more coal to meet our nation’s energy requirements. The industry 

has answered that call while providing a safer working environment for its workforce. Since 1970, coal production has increased by 83 percent, and coal mine fatalities have decreased by 92 percent.

29

One need only look at 2004’s safety record to recognize that the industry is moving in the right direction. Today’s reportable injury incident rate of 5.6 per 100 

workers gives coal mining a lower rate of occupational injuries than hospitals, manufacturing, nursing and residential care facilities among others. No longer can coal 

mining be stereotyped as the most hazardous job in America—a characterization 

often used by those unfamiliar with today’s mining industry.


watz1.eps watz2.eps
30

Similar dramatic reductions have been accomplished across the entire mining industry both in terms of reductions in fatal injuries as well as the industry’s losttime injury rate. During the period 1990—2004 fatalities declined 53 percent and 

injuries declined 52 percent. Again, progress with more work to be done. 

We take pride in all of these accomplishments. Yet, the events in West Virginia 

again illustrate the fragile nature of these accomplishments and the need for constant vigilance to sustain them. More can, must and will be done.

Today, I’d like to discuss with you a three-fold challenge: 


watz3.eps watz4.eps
31

First, the principles we believe should guide our actions and policy makers based 

on our analysis of the partial information coming out of this year’s tragic events; 

Two, the need to focus on accident prevention in a changed and changing mining 

industry; and 

Three, a call to modernize MSHA’s enforcement procedures to more accurately 

mirror actual conditions in the mines, rather than an inflexible adherence to outdated procedures. 

Guiding Principles 

NMA has reviewed the publicly available information that has emerged from the 

events in West Virginia. In addition to the establishment of an independent commission of safety experts who will examine how technology and training procedures can 

be more readily adapted for use in our mines, our review has led to the development 

of a set of guiding principles that we offer for the Subcommittee’s consideration as 

it looks for ways to advance mine safety and health. Those principles include: • Expediting development and introduction of ground penetrating communication 

and tracking technology; • Improving emergency notification; • Enhancing safety training and rescue capabilities; • Providing liability shield and indemnification for mine rescue activities; • Ensuring new requirements are accompanied by workable transitional timeframes; • Providing authority for mine operators to conduct mandatory substance abuse 

testing of all personnel at the mine; and • Providing tax incentives to help companies invest in equipment and training 

needed for enhanced mine safety and rescue capabilities. 

Mine Safety Commission Formed 

In pursuit of these principles and to ensure a focused and transparent effort, 

NMA shortly after the first mine accident announced the formation of a Mine Safety 

Technology and Training Commission. The commission is drawn from safety experts 

in academia, labor and industry for the purpose of examining safety technologies, 

emergency response and rescues procedures and training regimes that could significantly enhance safety and rescue conditions in our nation’s underground coal mines. 

The commission is being chaired by a recognized expert in mine safety, Dr. R. Larry 

Grayson, chairman and professor of mining and nuclear engineering at the University of Missouri-Rolla. The Commission’s first meeting will be held next Friday, 

March 10, and it will report its preliminary findings to the public and mine safety 

authorities by July 1, with a final report by the end of this year. We anticipate the 

commission will examine, among other items, the current and new promising technologies for mine communication, tracking miners’ locations, rescue technology and 

methods to more readily and reliably detect potential safety hazards. 

Beyond the specific guiding principles discussed above, we direct your attention 

to two over-riding challenges. 

Focus on Accident Prevention 

Today, many coal mines present challenging geologic conditions. As mines access 

deeper reserves, the technological limitations of historic control methodologies are 

readily apparent, presenting miners, mine operators and agency personnel with new 

and more difficult engineering challenges. To address these challenges miners and 

mine operators, alike, have initiated several partnerships with the MSHA and the 

National Institute for Occupational Safety and Health (NIOSH) to examine new 

technologies to better protect miners’ health. These partnerships have brought together experts to work on practical solutions to safety and health problems confronting the industry. I’m pleased to report that the industry has joined with the 

NIOSH, MSHA, the United Mine Workers of America, and the State of West Virginia to form a partnership on Mine Emergency Communications. 

The work of these partnerships is still on-going, and our members continue to 

dedicate time and resources to this vital work. Our hope is lingering problems can 

be overcome through the development of new, mine-worthy engineering solutions. 

When based on sound science, this work can and will provide the basis for future 

rulemaking, if warranted. More importantly, however, the partnerships also reflect 

a new working dynamic that has evolved in the mining industry to advance miner 

safety and health. 

The members of this subcommittee and your colleagues on the respective appropriations subcommittee are very aware of the need to maintain a vibrant and well 

funded mining research program within the NIOSH. The tragic events in West Virginia underscore this need. The federal government has an important role in technology development—in order to bring safer, new devices to a relatively small marVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
32

ket for safety equipment. We urge your support to strengthen this vital government 

function. 

Modernize Our Regulatory Approach 

In addition, certain structural changes in our regulatory approach to mine safety 

are necessary. 

Key among them is the need for MSHA to overcome institutional barriers to 

change, including changes that prevent the agency’s management from implementing new programs. No less than a paradigm shift is required for the manner 

in which the agency implements its legal requirements. The agency must conduct 

more focused inspections and enhance the quality of inspections through continued 

inspector training and education. 

In order to allocate its resources more effectively, we believe the agency must foster a more flexible inspection protocol while maintaining compliance with the inspection mandates of the Mine Act. 

Many of our members that operate some of the safest mines in the country continue to have inspectors on-site during each and every operating shift. In regions 

where mines have closed, inspector presence has, without cause, increased at operating mines. The misperception persists that the Mine Act’s mandate of four inspections annually for every underground mine and two inspections annually for every 

surface coal mine translates to only four and two visits annually. Nothing can be 

further from the truth. MSHA statistics show that a large underground mine can 

have more than 4,000 on-site inspection hours per year. This means the presence 

of 2-3 inspectors each and every day the mine operates. With infinite resources, this 

wouldn’t be a concern. But none of us have that luxury. 

As a result, flexibility in inspection procedures is central to achieving the resource 

allocation determinations that are vital for improving the agency’s safety and health 

programs and the industry’s safety and health performance. The Voluntary Protection Program (VPP), instituted by the Occupational Safety and Health Administration, has been a remarkable success in the non-mining sector. Introduction of a VPP 

for the mining industry is long overdue. We must overcome traditional barriers to 

reach new safety and health plateaus—and VPP is an important tool to achieve this 

goal. Mines with safety performance that exceeds stringent, verifiable safety goals 

should not be inspected with the same vigor as those that fail to meet such criteria. 

Continuing to mandate a minimum of rigid inspections, with no correlation to performance, will not help us further reduce the incident rate. 

Even with the changes that have been adopted, and the improvements that have 

been documented, more must be done. MSHA must redirect personnel and budgetary resources to ensuring safety improvements from mines with poor or unsatisfactory compliance records. We remain concerned that failure to implement, or 

delays in implementing required changes, may thwart the positive safety and health 

advances that are attained when the agency can allocate resources based upon need, 

rather than on historic geographic or political considerations. 

The West Virginia Experience 

Mr. Chairman much attention has been focused on the response the expediency 

with which the West Virginia legislature passed legislation to address the actual 

and perceived shortcomings of safety practices. Following passage of that legislation 

emergency rules were promulgated that became the subject of discussion and debate. This week revised emergency rules are being issued that are significantly different than those initially published. Why is that? We would submit that once the 

expertise of industry, labor and all relevant government officials were utilized, a 

better solution was achieved without losing site of the general precepts of the initial 

legislation. Mr. Chairman, we would hope that the Congress will learn from that 

experience. We believe that the best way to improve mine safety is to pool the collective efforts of industry, labor and government to solve problems, without agendas. 

Summary 

Today the mining industry and its dedicated mine safety and health professionals 

face challenges far different from those anticipated when the Mine Act was adopted. 

Difficult geological conditions, faster mining cycles and changes in the way work is 

conducted introduce potential complications that require the introduction of new 

and innovative responses. 

As we look to the future, we recognize that our ability to further advance coal 

mine safety and health will require an examination of the structural and technologic 

hurdles that must be overcome. It will require a commitment to identify and foster 

the development of 21st century technology that will perform effectively and reliably 

in the mining environment. Technologies such as the introduction of remote control 

miners, integrated methane monitors on mining equipment, atmospheric monitoring 

33

systems, and longwall mining systems are a few of the advances that have contributed to the industry’s improved safety record. Advances in technology have been integral to our safety improvements thus far and will, we believe, contribute to further improvements in mine safety. 

Further improvement will require us to identify potentially dangerous conditions 

before they put miners’ safety or health in jeopardy as well as the appropriate methods to minimize, to the degree possible, the onset of dangerous conditions and practices. 

Simply put, improved safety performance demands that both government and industry redirect resources toward the prevention of accidents, injuries and illnesses 

and away from business-as-usual policies that inevitably lead to unnecessary and 

unproductive confrontation. 

Mr. Chairman we look forward to working with you and your colleagues as the 

Congress considers legislation. Working together, we will develop programs to train 

and educate a new generation of employees so that they can have a safe and productive career in an industry vital to this country’s energy markets and national interests. 

Thank you. 

Chairman NORWOOD. Thank you, Mr. Watzman. 

I will have to tell you that I do not think any of us up here are 

miners, but we are people who are desperately interested in the 

right policy for health and safety for miners, and so you will forgive 

us if we ask some questions, gentlemen, that may seem elementary 

to you, but we are in the process of very much trying to learn. 

And I would like to follow up—I recognize myself for 5 minutes 

for questions. I would like to follow up just exactly on what you 

were saying, communications. I know a little bit about that. I know 

that I am told that presently a land line is what we use in mines 

to communicate with today, and that is not necessarily reliable, as 

recently we found out. 

A land line is used in many situations—in war—and often they 

get cut. So what we want to do is say okay, you must use proper 

communications so these men can talk to the surface. Is it out 

there? 

Yes, sir? 

Mr. WATZMAN. Yes and no, Congressman. There are systems out 

there, but the systems that exist today have limitations. What we 

ultimately, as an industry, would like to see——

Chairman NORWOOD. Let me rephrase. Is it out there that will 

work——

Mr. WATZMAN. No. 

Chairman NORWOOD [continuing]. Get the job done? 

Mr. WATZMAN. No. It is not today. What we want to see——

Chairman NORWOOD. Under any feasible circumstance, we can 

rely on these folks to be able to talk to the surface and the surface 

back to them? 

Mr. WATZMAN. The systems that are in place today in use in the 

U.S. rely, for the most part, on some installations of underground 

hardware to support that technology. That underground hardware 

can get damaged in an explosion or fire. We do not have today true 

uninterruptible, ground-penetrating, two-way communication systems. 

Chairman NORWOOD. Mr. Friend, we sat right down there in 

Houston, and we talked of astronauts on the moon. Now, why in 

the dickens can’t we talk to the men underground and them talk 

to us? 

34

You are having a session coming up, I understand, to—let’s review all of the technology, is that what is going on? 

Mr. FRIEND. Currently, as I mentioned in my statement, the 

meeting on the 13th—that is the subject. However, we do have 

someone in Australia this week examining some of the technology 

that already exists. 

Chairman NORWOOD. That is a one-way technology? 

Mr. FRIEND. That is a one-way. We need a two-way communication system. 

Chairman NORWOOD. That is right. Now, what do we need to do 

to get to that? 

Mr. FRIEND. I think we need to create the market. I mean, I 

think if the market is there, probably the manufacturers will step 

up. We are investigating all of that right now. We are looking at 

what is available, what can be done. 

We are talking to the Department of Defense and everybody we 

can consult with to see if the technology exists and what it would 

take to drive it. We are——

Chairman NORWOOD. We should talk to NASA and get them to 

figure this out for us. There is no reason we cannot get that done, 

I do not believe. 

Mr. FRIEND. Well, there is a lot of ground over some of our 

mines. Some of them are extra deep, and without hardware in the 

mine itself, it is difficult to go through that much ground, that 

much cover. 

Chairman NORWOOD. Mr. McKinney, help me understand a little 

bit about belt air systems. I mean, I understand—I mean, the way 

I would envision it, there is a conveyor belt that goes to the bottom 

of the mine, and we are hooking a tube onto that, where we can 

put air into the face of the mine for the purpose of helping have 

a cooler environment plus remove methane gas. Is that what a belt 

air system is? 

Mr. MCKINNEY. Not exactly. We have dedicated entries that actually channel fresh air to the faces. 

Chairman NORWOOD. You have to do that—no matter what else, 

you still have to do dedicated entries, right? 

Mr. MCKINNEY. Yes, sir. And as a normal rule, those are separated from the belt entry because of some issues associated with 

belt drives and things like that. 

Over the last 20 years we have petitions and modification which 

are the mechanism we have to look at alternate ways of complying 

with requirements in the regulations. And those petitions allowed 

people to actually take the air that ventilates the belt line, the conveyor belt line, into the face area. 

It is done for a couple of different reasons. In some mines, you 

have a lot of ground control problems. You have 3,000 feet, 4,000 

feet of cover. They cannot drive multiple entries in order to have 

the intake air courses, so they utilize the belt entry to take air into 

the face area. 

When that happens, we have——

Chairman NORWOOD. Well, may I? Excuse me. I cannot figure 

out why employers want to do that and the miners do not want to 

do that. That is confusing to me. 

Mr. MCKINNEY. Well, I think sometimes——

35

Chairman NORWOOD. I mean, doesn’t it help? 

Mr. MCKINNEY. I will try to—I think sometimes it does get confusing for folks. With belt air, there are some things that you have 

to have safeguards in place, and we do that. We have atmospheric 

monitoring systems that we place along the belt line to give early 

warnings to miners on the section and on the surface. 

There is someone that stays on the surface at all times that looks 

at that. There is an alert level, like it could be set at five parts per 

million of carbon monoxide. At that alert level, you notify people 

that there is an occurrence ongoing. 

There is an alarm level where we bring people out of the coal 

mine. So there is built-in safeguards when we use belt air in the 

face. 

I think we have to be cautious—I heard a statement a moment 

ago about what occurred at Alma. I think we have to be cautious 

about prematurely jumping to conclusions on this until we find out 

exactly what occurred there. 

I was at Alma during the recovery operation, and from what I 

have seen on the front end, belt air was not allowed to be used on 

the two section legally. So I think we need to find out exactly what 

the situation was there before we jump to conclusions. 

Chairman NORWOOD. Well, the 1977 law says you cannot use 

belt air, am I right about that? 

Mr. MCKINNEY. That is exactly correct. And there is a petition 

and modification process that allows you to offset a regulation if 

you put safeguards in place. As that happened through the course 

of industry and we looked at those petitions, more and more mines, 

almost 100 petitions, are out there where people were using belt 

air in the face through the petition process. 

We did not see occurrences that caused us to believe that that 

was an unsafe practice, so that is why the rule was put in place. 

Chairman NORWOOD. Probably need to ask the boys and girls 

down at the bottom of the mine how they feel about it. 

My time, I see, has gone. 

Mr. OWENS. Mr. Chairman, we have the ranking member. 

Chairman NORWOOD. The ranking member here? 

Mr. OWENS. I would like to yield to him for——

Chairman NORWOOD. Mr. Miller, you are recognized for 5 minutes. 

Mr. MILLER. Thank you, Mr. Chairman. And thank you for holding this hearing. 

And Major Owens, thank you for yielding to me. 

First, Mr. Chairman, I would like to ask unanimous consent to 

insert my opening statement in the record. 

[The prepared statement of Mr. Miller follows:]

Prepared Statement of Hon. George Miller, Ranking Minority Member, 

Committee on Education and the Workforce 

Mr. Chairman, I am very pleased that you are holding this hearing today. I hope 

it will be the beginning of our efforts to address this mine safety crisis, and not the 

end. And let’s be clear—this is a crisis. Twenty-one coal miners have died in the 

first two months of 2006, only one fewer than the total number of coal miners who 

died in all of 2005. 

Our goal should be to reduce the number of mining deaths to zero. We will not 

make progress toward that goal if we continue down the path the Bush Administration is on. This Administration has not only failed to make the safety and health 

36

of mine workers a priority, it has also undermined the mine safety program through 

regulatory roll backs, budget cuts, and unqualified leadership. 

The President has filled the top political positions at the Mine Safety and Health 

Administration with former mining executives. Those executives have begun to act, 

predictably, in the interests of their friends in the industry, not of the mineworkers. 

I recently issued a report that showed that the Bush MSHA has delayed, weakened, 

or scrapped 18 regulations intended to protect mine workers, while adopting one 

rule that clearly would make them less safe. 

This Administration has ignored the requirement of the law that no new standard 

be less protective than an existing standard. Instead of implementing a critical rule 

that would have gone into effect this January to help reduce the risk to underground metal and nonmetal miners of lung cancer, this Administration instead proposed to delay implementation for five years. Indeed, it claims this approach is 

equally as protective in putting the rule into effect promptly! 

The Bush MSHA has also shifted from a focus on enforcing the law to a focus 

on so-called ‘‘compliance assistance.’’ Compliance assistance is a fine approach to 

take with responsible mine operators, of which there are many. But the Sago Mine’s 

owners failed to rectify serious repeated violations of the law in 2005. Its owners 

were interested in maximizing their profits, not complying with safety laws. Scofflaws like that only understand one thing: money. They will only comply with the 

laws when failing to do so means losing a lot of money. 

The Bush Administration has also cut MSHA’s funding every year since 2001. As 

a result, there is funding for 190 fewer coal enforcement personnel now than there 

was when the Bush Administration took office. This year, even after the horrors at 

Sago and Aracoma Alma, the Administration refused to request funding to pay for 

more enforcement personnel. 

As with FEMA, when it comes to mine safety, the Bush Administration has failed 

in its most basic responsibility. And this Congress has failed to hold the Administration accountable. This is the first oversight hearing on worker safety in five years—

five years. That is an inexcusable record of neglect. 

There are a number of steps the Bush Administration must take to improve mine 

safety, and it is Congress’ responsibility to make sure it takes them. 

For starters, the Bush Administration has an obligation to stop shutting the public out of decision making processes and actions that affect mine safety. For this reason, Democrats have asked the Administration to open up all of its records, including inspectors’ notes, to public scrutiny. It has begun to do so. We have also asked 

MSHA to hold a public hearing on the Sago accident, and it should do so immediately. 

Next, the Bush Administration must immediately use the authority it already has 

to enforce the law to make mines safer. This means immediately implementing commonsense rules that we know would protect the lives of mine workers and could 

have affected the outcomes of the tragedies we have seen this year. It also means 

punishing scofflaw mine operators with meaningful fines that will force them to 

change their bad behavior, not letting them off easy with paltry fines—lower than 

the cost of a speeding ticket—that can simply be written off as just another cost 

of doing business. MSHA has said it will look at the fine structure, and that is a 

positive step. But it has not provided any timetable for doing so, and it should. 

Finally—and this is an issue we have heard repeatedly from miners and their 

family members—MSHA must move more quickly to adopt new technologies to improve the safety and communications capabilities of mine workers. Communications 

and tracking devices are a prime example of technological advancements that could 

have saved the lives of many of the miners who have died last month at the Sago 

Mine. In an age where communications technology is rapidly advancing, it is beyond 

shocking that basic communications and tracking devices are not required safety 

protocol in mines. 

Last month, Democrats convened a forum on mine safety to give miners’ and miners’ families a chance to make their voices heard on Capitol Hill. We heard from 

seven people—sons, daughters, and wives—who had lost loved ones in mining accidents in Alabama and West Virginia. 

One of those witnesses was Amber Helms. She was only 23 years old, but she 

made a smart and eloquent statement that would make any father proud. Her father, Terry Helms, died in the explosion at the Sago Mine. Amber talked about how 

generous and caring her father was, and how he was her best friend. She asked why 

more wasn’t being done to keep miners safe, and she questioned the lack of proper 

equipment for miners when she said: 

‘‘Yet these men work as we speak—right now today there are men underground 

working in conditions and with equipment that are so outdated—I mean, it’s ridiculous that I can get a computer and I can make a full Web site in an hour and have 

37

it up and running so the whole world can see it, but no one can find my dad or 

no one can track these men. In Australia, they have tracking devices that cost as 

little as $20. What’s $20 to a company?’’

Industry executives will argue that this technology is not yet perfected, and therefore is too risky to equip mine workers with. But even if these tools had worked 

properly only half of the time, lives would have been saved, and serious, life-threatening injuries would have been prevented. There is too much hanging in the ballots 

here to hold out for perfection. As Amber said, ‘‘The technology is out there.’’

This Congress has been blind to the need to maintain even the protections that 

already exist under the law. It wasn’t long ago that some members of our committee, including its former chairman, were actively seeking legislation to abolish 

MSHA and NIOSH and to cut back critical enforcement provisions. 

Under that legislation, three out of the four mandatory annual inspections at 

every underground mine would have been eliminated. Inspectors would have needed 

a warrant before entering mine property. Only miners in unionized mines would 

have had the right to accompany inspectors as they examined the mine. The circumstances in which an inspector could shut down an unsafe section of a mine 

would have been restricted. Mine operators would not have had to pay fines for typical citations as long as the hazards were abated. And on and on. 

That legislation was defeated. But that apparently hasn’t deterred Administration 

officials from trying to gut MSHA anyway. Now they’re just dismantling it and taking it out the back door, where they think no one is watching. Well, we are watching. Legislation must be enacted to ensure that changes are made, changes that 

make the safety and health of these mine workers a priority, and that prevent the 

industry from being allowed to get away with further abuses. 

I want to commend Congressman Nick Rahall and his West Virginia colleagues 

for their prompt hearings and action on these issues. On February 1, they introduced H.R. 4695, the ‘‘Federal Mine Safety and Health Act of 2006,’’ which enhances 

and reinforces the original purpose of the landmark Federal Coal Mine Health and 

Safety Act of 1969, as amended by the Federal Mine Safety and Health Act of 1977. 

This legislation is a vital step in this process, and an effort that I am hoping will 

be a catalyst for change. 

Amber’s testimony, and the powerful and courageous testimony provided by all 

the witnesses at the forum, is documented for all to see. I strongly urge all members 

of this subcommittee to watch the footage of the forum, and the incredibly important 

questions posed by these witnesses, questions that have not been answered—not by 

the Administration, and not by MSHA. 

As Amber said: ‘‘I understand that nothing that I say today or nothing that happens in the future is going to bring my dad back. But my uncle Johnny, my uncle 

Mike, my cousin Rocky, as well as every other miner that is underground and every 

other son who’s getting ready to go into the coal mines—because that’s where the 

jobs are in West Virginia and maybe some of these other states—we can prevent 

their families from going through this.’’

We owe it to Amber and every other American who has lost a loved one in a mining accident to learn what more we can do to make mines safer. And then, just as 

Amber says, we must take action to prevent more families from going through the 

hell that she has had to go through. 

Thank you, Mr. Chairman. 

And I would also, Mr. Chairman, like to ask unanimous consent 

that the transcript of the forum that we held with miners’ families, 

the victims of the Sago and Aracoma mine disaster—that the transcript of that hearing be made part of this record. 

Chairman NORWOOD [continuing]. To have an opportunity to look 

at that. 

Mr. MILLER. I would be more than happy if you would read this 

record of what these families had to say to us. That would make 

my day, and I would hope that it would be made part of this 

record. So I renew my request. 

If I might, Mr. Friend, what were we doing about communications before this mining disaster? 

Mr. FRIEND. Underground communications? We had a hardwired 

system in the underground mines. 

38

Mr. MILLER. No, but what are the agencies doing about looking 

at this in terms of modernization, new technologies? As the chairman has pointed out, people see us talking light years into space, 

and they do not see us talking into a mine. 

Mr. FRIEND. Two communications systems that have received a 

lot of attention of late are the TRACKER, so-called TRACKER, and 

the PED System. Our technical support group has evaluated those 

in the past, as they are mandated to do because of permissibility. 

So those two systems are approved, and that is when it came to 

our attention, and we started looking at it. 

Mr. MILLER. That was when? 

Mr. FRIEND. I do not know when they received their approval. I 

can get you——

Mr. MILLER. Does anybody at the table know when their approval was handed out? 

Mr. FRIEND. We can get you that information. 

Mr. MILLER. But I mean, nothing was done to provide for any requirement of this kind of communication system in the mine or 

tracking system. 

Mr. FRIEND. That is correct. 

Mr. MILLER. So up until this disaster, then, on the 25th you put 

out a request for some information, according to your testimony, is 

that correct? 

Mr. FRIEND. In January, I believe. 

Mr. MILLER. Mr. O’Dell? 

Mr. O’DELL. Yes, I would like to speak specifically to the tracking 

equipment. 

Mr. MILLER. Quickly, if you can. 

Mr. O’DELL. In 1968, when the Farmington No. 9 mine blew up 

and killed 78 miners, the then Bureau of Mines was directed to 

come up with tracking devices to locate miners. 

In 1970, the Bureau of Mines developed a system, an electromagnetic tracking system, that was proved to work as deep as 

4,000 feet coverage. And it was approved and tested, and it passed 

all those things that needed to be passed to locate miners. 

To this day, that system has sat on a shelf somewhere collecting 

dust. And following up on that, in 1975——

Mr. MILLER. Mr. Friend, is that accurate? 

Mr. FRIEND. I have no knowledge of it. 

Mr. MILLER. Well, I mean, I find it kind of stunning in the testimony. Apparently, nobody had any knowledge of this until we had 

this disaster. Now everybody says it is available, says it is in use 

in some cases in the United States and apparently in Australia, 

and now we are asking for a request for information on this. 

And yet you put this coalition together in West Virginia and they 

pass the law, and I think it is going to be done in 90 days. Is that 

accurate? Is that correct? 

Mr. MCKINNEY. I did not hear what you said. My understanding 

is that part of that regulation’s been delayed until they could see 

if the technology is there. 

You are right about the regulation being passed, but I think I 

read where the governor has delayed the implementation of the 

communications——

Mr. MILLER. Is that correct? 

39

Mr. Watzman, is that correct? 

Mr. WATZMAN. That is correct. In fact, we are told that today revised emergency rules are being announced by the governor to reflect what Mr. McKinney just said. 

Mr. MILLER. And that would do what? 

Mr. WATZMAN. It will delay the implementation of those to allow 

time for an examination to make sure the technology meets the objectives that have been outlined in the legislation. 

Mr. MILLER. Has the agency ever conducted any experiments on 

any of these systems? I mean, you know, I assume that there is 

journals of mining, there is journals of mining safety. People keep 

up to speed in the health sciences and education. 

Do you keep up to speed? Do you try these things in the mines? 

Has the association tried——

Mr. WATZMAN. Mr. Miller, one of the problems we have, as I alluded to in my testimony, is that there are 634 underground coal 

mines in this country. We are not a big market——

Mr. MILLER. I am asking you have you tried any of these. Have 

you gone to a manufacturer and said we would like to see if this 

works in a 4,000-foot-deep mine? 

Mr. WATZMAN. Many technologies have been tried. Others have 

not, because there are not manufacturers who have developed 

these. What Mr. O’Dell referred to was research done by a government agency. I am not aware of any manufacturer that then took 

that information and brought a product to market. 

Mr. MILLER. Mr. Friend, in your testimony, you praised, and 

properly so, the rescue teams that were engaged in the rescues 

after the events at these two mines. 

And yet we have seen a number of those teams go down and a 

number of people being trained for those teams continue to go 

down, and regulations were withdrawn that would have required 

to have a couple of teams at each mine. 

So nothing was done since those regulations have been withdrawn? I mean, it took 5 hours for people to get the rescue teams 

to be put in place at Sago. 

Mr. MCKINNEY. I think if you look closely at those regulations 

that were withdrawn——

Mr. MILLER. Are you answering for Mr. Friend? 

Mr. FRIEND. Oh, was the question directed to me, sir? 

Mr. MILLER. Yes. Hello, Mr. Friend. You are in this room. Do you 

want to listen for a minute? 

Mr. FRIEND. Sure. 

Chairman NORWOOD. Be nice. 

Mr. MILLER. Be nice? This is the third time he says I—you know, 

he is in some other place. 

Mr. FRIEND. Well, you know, I spent a few years in the mining 

industry, and my hearing is not quite what it should be. 

Mr. MILLER. Well, then say so, and we will——

Mr. FRIEND. I apologize for that. 

Mr. MILLER [continuing]. Be happy to work with that. So what 

is the answer? The question is what has been done since the regulation was withdrawn that would have required a couple of trained 

teams at each mine. What has been done since then? 

40

As I look at the figures, both the number of teams and the training provided has continued to go down. 

Mr. FRIEND. The regulations allow mining companies to contract 

their mine rescue services. That is in the regs. Most of the large 

mines have their own teams. And in that respect, we have not done 

anything to change the numbers because they are all in compliance 

with the regulations. 

Mr. MILLER. So you are not suggesting to me that there is a 

qualified rescue team readily available at each and every mine. 

Mr. FRIEND. Yes, within a 2-hour travel time, which is what the 

regulation requires. 

Mr. MILLER. How come it took 5 hours? 

Mr. FRIEND. Two hours travel time. 

Mr. MILLER. Well, why was it 5 hours in this case? 

Mr. FRIEND. Well, I was not there that day, but we did not receive notice until 2 hours after the incident. We were on the property 4 hours after that. I do not know when the first team got 

there. 

Mr. MILLER. Are you addressing the rescue team issue, or you do 

not think it needs to be addressed? It is nowhere in your testimony. 

Mr. FRIEND. That is part of the request for information. Also, 

with the state of West Virginia we are having a co-meeting along 

with NIOSH to discuss technologies, communications, rescue, all of 

it. 

Mr. MILLER. This is a real busy agency since this disaster. 

Mr. FRIEND. Well, we have had a remarkable record up until this 

January, and I do not think anyone can dispute that, in accordance 

with the numbers. 

Mr. MILLER. But you do not engage—I mean, you do not engage 

in some kind of constant, continuous improvement around these 

critical issues of in-mine safety, of rescue safety, of communications? This isn’t an ongoing effort? 

Mr. FRIEND. Absolutely. But I do not think anyone in this room 

knows the root causes of Alma or the Sago Mine accident. 

Mr. MILLER. This is about just dealing with the event. You know, 

listen, we are very happy with the record, but it is not to suggest 

that we have erased the events. Mine rescue deals with an event 

taking place. Communications deals with an event taking place. 

I assume that there is some effort to constantly update our ability to respond to events, but apparently there is not. It has all sort 

of happened since January 9th. 

Mr. FRIEND. We are taking a look at that. 

Chairman NORWOOD. Thank you, Mr. Miller. You are into Mr. 

Owens’ time. 

Would you restate you request, please? 

Mr. MILLER. I asked unanimous consent that the transcript of 

the February 13th hearing that we had with the families of the 

miners who lost their lives in the mine could be made part of the 

transcript of this record. 

Chairman NORWOOD. That is so ordered. 

Mr. MCKEON. Would the gentleman yield? 

Mr. MILLER. Thank you. 

Mr. MCKEON. Would the gentleman yield? 

Mr. OWENS. Yes, sir. 

41

*Submitted and placed in permanent archive file, Democratic Members of the House Education and the Workforce Committee, Forum on Mine Safety (Political Transcripts, CQ Transcriptions, Inc.) (February 13, 2006). 

Chairman NORWOOD. Mr. Chairman, yes. 

Mr. MCKEON. Good to see you. 

Chairman NORWOOD. Good to see you. 

Mr. MCKEON. It was not a hearing. It was a forum held by the 

minority. 

Mr. MILLER. Correct. 

Mr. MCKEON. And that will be so stated in the record.* 

Mr. MILLER. Yes. 

Mr. MCKEON. Just for that clarification. 

Mr. MILLER. We get carried away and think it is a hearing every 

now and then, Mr. Chairman. You know how it is. But we were listening, Mr. Chairman. 

Chairman NORWOOD. We are going to make sure it is not. 

Dr. Price, you are now recognized for questioning for 5 minutes. 

Mr. PRICE. Thank you, Mr. Chairman. I appreciate you holding 

this meeting and appreciate the information that has been delivered. I would also request and just reiterate what you said early 

on that sober, deliberate, calm discussion of this is the way that 

we get to solutions, I believe, and would encourage that from all. 

I want to thank the miners who are here, and please convey to 

your brothers and sisters in your work that I believe and we believe you are on the front lines of our energy independence, and 

thank you for the work that you do. 

I want to also thank MSHA and those folks who have demonstrated clearly a decrease in mine incidents and fatalities. As I 

understand it, 2005 had the lowest number of fatalities in the history of the mining industry, and so somebody’s doing something 

right. 

And I just want to point out for the record that both Mr. Friend 

and Mr. McKinney are from MSHA, and Mr. Friend mentioned at 

the beginning that Mr. McKinney may answer certain questions if 

somebody has greater information, and so I respect that you two 

are tag-teaming it, and would ask whoever has the greatest 

amount of information to supply that for us. 

I would ask either of you whether you believe that Congress 

needs to do anything to improve MSHA or mine safety at this 

point, given the recent history? 

Mr. FRIEND. Well, certainly there are several areas that maybe 

could use improvement. Our penalty process is antiquated. It is 

quite old. And the acting assistant secretary of labor, David Dye, 

has asked me to start the process to revise part 100, which is in 

the 30 CFR, which will increase the penalties. 

The secretary has proposed, and the president, I think, has recommended that the maximum fine, which now is set at $60,000 in 

the statute, that that be increased to $220,000 for the flagrant violations. Those are some of the things, I think, that Congress can 

do. 

Mr. PRICE. Anything besides penalties? 

Mr. FRIEND. Sir? 

Mr. PRICE. Anything besides penalties? 

42

Mr. FRIEND. We are doing pretty well with what we are—I mean, 

with the regulations that we are proposing. As far as congressionally, I do not know. 

I know there are some things in there that we are currently already doing that has been put forth—for example, the 24-hour, 7-

day hotline to report accidents, which the management at the Sago 

did not utilize. That is answered every day by a person. 

Mr. PRICE. Let me move on to a couple other items, because——

Mr. FRIEND. Sure. 

Mr. PRICE [continuing]. We are limited on time, and I appreciate 

that. 

Mr. O’Dell made some pretty scathing statements, and as far as 

I can tell, many of them are accurate. And I would ask you to comment on—this belt air issue has me perplexed. As the chairman 

said, it appears that the company wants it, the miners do not, and 

that has not been worked out. I would ask you to comment on that. 

And then as a lay person not knowing anything about mines, 

how can belts be flammable? I mean, I understand how they can, 

but why do we allow flammable belts in an environment where explosions are possible? 

Mr. FRIEND. For your first question on the use of belt air, we 

have been approving on a case-by-case basis the use of belt air to 

ventilate working faces for 26 years. In fact, during the previous 

administration, those were approved on a case-by-case basis 67 

times. So it is not anything new. 

So the belt air rule, when it came out in 2004, codified all the 

stipulations and requirements that were in those case-by-case petition for modifications. That included, as Ray mentioned, the atmospheric monitoring systems and the state-of-the-art fire suppression 

systems. 

Air is needed at the working face to dilute methane. 

Mr. PRICE. And flammable belts? 

Mr. FRIEND. And the flammable belts—we determined that with 

the atmospheric monitoring system and the fire suppression system, there wasn’t a need for a rule. 

Mr. PRICE. And I find that hard to believe, but I will take you 

at your word. Again, as a lay person, it is just inconceivable to me 

that we cannot tell where miners are at all times by some tracking 

device, and I just cannot believe that that technology is not out 

there. 

Mr. FRIEND. It is only in two coal mines in the world, the 

TRACKER system. One is in Australia, which we are evaluating 

this week, and the other is in China. 

Mr. PRICE. We just ought to be able to tell where they are. 

Mr. FRIEND. Sir? 

Mr. PRICE. We just ought to be able to tell where they are. It 

does not make any sense. 

Second, and I will close with this, it would make sense to me 

from a structural standpoint of mine that there ought to be safety 

rooms as the mine is built, as you go further in, that have some 

kind of communication device. 

So when we are sitting at home watching the television and crying and grieving for the families that are waiting for their loved 

43

ones to come up, it just seems like there ought to be a room where 

they ought to be able to go and be safe until we get there. 

Mr. FRIEND. Well, the metal and non-metal mines have required 

refuge chambers for many years in this country. If a miner cannot 

get to the surface within 1 hour, they have to have a refuge chamber. And the 1 hour is because the limitations on the self-rescuer 

they are wearing on their belt. 

However, that ore does not burn. It is totally unlike coal. I mean, 

coal in itself is a fuel. And does it work? It has in some countries, 

I understand, and certainly we want to look at those. I met with 

a manufacturer recently from Australia who is willing to make one 

that is telescopic, and that is due to the low heights of coal seams 

in this country, and they go down to 28 inches, 29 inches, if you 

can believe that. 

So it is difficult because coal advances at such a rapid rate in development. Coal is a fuel. And we do not want people going into 

a refuge chamber if they can evacuate the mine. And if we failed 

anywhere over the years, it is to get that message: You evacuate 

the mine. You do not barricade. 

And we have distributed stickers—I have one on my hard hat 

that is years and years old. First item on it: If escape is blocked—

and it is in red—then, in black letters—then you barricade. And 

perhaps we have not continued to hammer on that message, but we 

had that opportunity in January during the stand down for safety. 

All across this nation, we made that point, and we will continue 

to make it. You do not stay. You do not barricade. You get out of 

the mine. And that is the reason for the SCSR in the early 1980s. 

It gave them 1 hour of oxygen to get out of the mine, not to barricade with. 

Mr. PRICE. Thank you, Mr. Chairman. My time has expired. 

Chairman NORWOOD. Good question, Dr. Price. 

Mr. Owens, you are now recognized for questioning. 

Mr. OWENS. Mr. Chairman. 

I would like to direct my first question to Mr. Friend and Mr. 

Watzman about these devices. Our information is that devices, 

tracking devices, are available not just in China and Australia but 

South Africa, Argentina, Canada and a couple other places. 

Now, in your department, is there any person assigned to keep 

up with what is happening in the world? We try to stay ahead of 

the world in every other respect. 

And, Mr. Watzman, you gave very fuzzy answers about such 

equipment, as if it may exist but it is not perfected. We can communicate with people on the moon. We can communicate with people on the Titanic at the bottom of the ocean. We have all kinds 

of ways to communicate, you know, on reasonable mediums. 

So why does it have to be absolutely perfect before it is useful? 

This device here has been in use for 15 years to 16 years. It is a 

tracking device. It costs $20. Why doesn’t every miner have one 

now? 

Are the costs so great that a coal industry that is making tremendous amount of money on energy—produce energy now—I am 

sure you are making huge profits. What is the impediment to introducing these devices? 

44

There is another device here which has been in existence for 

quite a while which will give you a—send to the miners a message. 

It cannot communicate two-way, but it can send them a message. 

It could have gotten a message which says—those miners in Sago—

that if you walk a certain distance in a certain direction, you will 

be out of the smoke. 

You know, this is the kind of thing—these things exist now. Why 

is not America, always wanting to be ahead in technology—why are 

we dragging our feet, and why do you give such fuzzy answers 

about the possibilities? 

Mr. WATZMAN. Congressman, let me begin with the tracking device and set the record straight on a couple facts. Number one, the 

device you have shown is not $20. It is $200. But price is not the 

issue. 

Mr. OWENS. You mean the market has not brought it down yet. 

Mr. WATZMAN. This industry has shown time and time again 

that it will spend what it takes to provide a safe environment. But 

that——

Mr. OWENS. $200 is an impediment? 

Mr. WATZMAN. But that device in and of itself does not provide 

the tracking. There are underground beacons that have to be 

placed every 150 feet for those to operate. The miners must pass 

by those beacons. And if one of those is damaged when underground, you have lost tracking capability. 

It is not that we will not do it. It is not that we are unwilling 

to do it. It is that we are not aware of technology that has been 

perfected to provide——

Mr. OWENS. Are you going to wait until it is fully perfected? 

Mr. WATZMAN [continuing]. What we ultimately would like to 

see——

Mr. OWENS. It has to be 100 percent perfect before you will install it? 

Mr. WATZMAN. No, it does not have to be 100 percent, but we 

also do not want to provide a false sense of security. These systems 

are not perfect today. They require——

Mr. OWENS. Thank you, sir. Thank you. 

Mr. WATZMAN [continuing]. Underground——

Mr. OWENS. Mr. Friend, Mr. Friend——

Mr. FRIEND. Yes. 

Mr. OWENS [continuing]. Have you ever considered mandating 

that they use these devices? Anybody looked at the situation? Has 

your department concluded that it is too costly, it is not quite perfect? Has there been any real discussion of these existing devices 

employed in mines throughout the world? 

Mr. FRIEND. Yes. As I said, we are evaluating one in Australia 

now. There is none in this country, the TRACKER. 

Mr. OWENS. You are evaluating one in Australia. 

Mr. FRIEND. Yes, the TRACKER system—also, the PED System. 

We have gone to four mines in the last 2 weeks to evaluate the effectiveness of the PED. 

Mr. OWENS. One has been around for 15 years. 

Mr. FRIEND. I spoke to president of the company that manufac- tures those, and they are not $20. They are $200. But as he said, 

the price is irrelevant. But there is a lot of misinformation——

45

Mr. OWENS. Price is irrelevant, okay? 

Mr. FRIEND. That is what I said, yes. 

Mr. OWENS. Let me talk about price in these—I have about 18 

significant safety rules, health and safety rules, that you have either withdrawn—17 you have withdrawn and one you have delayed. 

What was the problem? I will just read a few: Enhanced requirements for self-rescuers. Require conveyor belts to be flame resistant. Establish accident investigation hearing procedures. Lower 

miner exposure to coal mine dust. 

Why were they withdrawn, all of these? Was it too costly, too 

complicated? I mean, what is——

Mr. FRIEND. Well, first——

Mr. OWENS. I am going to——

Mr. FRIEND. First of all, those are——

Mr. OWENS [continuing]. Ask unanimous consent to submit questions——

Mr. FRIEND. First of all, and I may not be able——

Mr. OWENS [continuing]. In writing—I am going to give you the 

whole list of 18, but——

Mr. FRIEND. Sure. 

[The submitted questions follow:]

Supplementary Questions for Witnesseses Submitted by Representatives 

Owens and Miller 

Questions for Mine Safety and Health Administration (MSHA) Witnesses 

1. News reports have indicated that MSHA investigators have declined to interview the mine rescue teams which participated in the rescue attempts at the Sago 

and Aracoma Alma mines. This has caused much concern among the rescue team 

members, the families of the victims, and the mining communities. Do MSHA accident investigation procedures require such interviews? How can we ensure future 

rescue teams are prepared for their tasks without interviewing those who have recently had to perform rescue duties? 

2. The regulations currently provide that with the exception of small and remote 

mines and those operating under special mining conditions, every operator of an underground mine is to establish or enter into an arrangement for two mine rescue 

teams to be available at all times when miners are underground. 

a. How does MSHA ensure compliance with this requirement? Is this something checked during mandatory and spot-inspections? How many operators 

have been cited by MSHA over the last year for failure to comply with the requirements of 30 CFR 49.2 and what penalties have been assessed? 

b. Has MSHA delegated any responsibility to ensure compliance with this requirement to any of the States? Do any of those states have requirements concerning rescue teams that differ from those under 30 CFR 49.2? 

c. How many underground coal mines and how many underground metal and 

nonmetal mines currently meet this requirement by establishment of their own 

rescue teams? 

d. How many underground coal mines and how many underground metal and 

nonmetal mines currently meet this requirement by entering into an arrangement for mine rescue services rather than establishing their own rescue teams? 

Of these, how many contract with a state to provide rescue services? How many 

contract with the operators of other mines? Do any contract with local rescue 

services or fire departments? How does MSHA ensure that these non-resident 

teams are trained and equipped in accordance with the requirements of 30 CFR 

Part 49? 

e. How many underground coal mines and how many underground metal and 

nonmetal mines are currently considered ‘‘small’’ or ‘‘remote’’ for the purposes 

of this requirement? How frequently does MSHA review their mine rescue 

plans? 

f. How many underground coal mines and how many underground metal and 

nonmetal mines currently operate ‘‘under special mining conditions’’ for the purVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
46

poses of this requirement? How frequently does MSHA review their mine rescue 

plans? 

3. What procedures does MSHA have in place to coordinate its activities during 

an emergency with local first responders such as police, rescue and fire departments? Does MSHA have funds dedicated to training first responders about special 

needs in mine emergencies? Are mine rescue teams required to invite local first responders to participate in required training sessions? 

4. Why did this Administration withdraw from its rulemaking agenda initiatives 

that would have addressed some of the safety hazards that have led to the recent 

loss of lives underground? Why haven’t you restarted each one of these initiatives? 

5. You have announced you will be using the agency’s authority to issue emergency temporary standards to deal with a few of the safety hazards that have received public attention since the Sago accident. On the other hand, you seem to be 

moving at a much slower pace in adopting rules requiring new communications 

technologies which could have saved lives in that tragedy. Is this because the industry has threatened you with a lawsuit? What can this Congress do to ensure these 

life-saving devices get into our mines before more lives are lost? 

6. For many years, permitting air used to ventilate the mine to run over conveyer 

belts, which generate friction and sparks, was prohibited by the law. Exceptions 

were only permitted after a public hearing and a determination by MSHA that the 

mine operator would observe a set of conditions specifically designed to limit the 

risk of fire in that mine. This Administration ‘‘green lighted’’ the use of ‘‘belt air’’ 

with a new regulation. In light of the Aracoma-Alma fire, why isn’t MSHA seeking 

to put a hold on its ‘‘belt entry rule’’? 

7. We have seen a news release announcing a new review of the penalty assessment process at MSHA, but nothing more than a news release. What is the scope 

of this effort and when can we expect some answers? 

8. You appear to have succeeded in greatly angering the families of the victims 

of these tragedies by, to date, keeping them from hearing witnesses who may be revealing information about the last hours of their loved ones. Why did MSHA withdraw proposed rules that would have, after public notice and comment, established 

procedures for public hearings and accident investigations? 

9. After tragedies like this, how should MSHA’s own conduct be assessed? Don’t 

we need some independent jury or body performing this critical function to ensure 

a full and honest review? 

10. Are decisions about mine safety and health being made by MSHA’s technical 

experts, or are non-expert appointees in other parts of the Department of Labor calling the shots? 

11. Self rescuers only provide about one hour’s worth of oxygen, and MSHA only 

requires operators to provide one for each underground miner. Why hasn’t MSHA 

required more? 

a. Isn’t it true that it could often take more than an hour to evacuate a mine? 

12. It was recently reported (Charleston Gazette) that the number of mine rescue 

teams declined by 10 percent between 2000 and 2002 alone, and the number of people participating in the annual rescue team competition has declined by 70 percent 

in the last 30 years. Do you know how many mines currently meet the requirements 

for having at least two mine rescue teams within two hours of the mine? 

a. When the Bush Administration withdrew a Clinton-era proposal that 

sought to increase the number and availability of mine rescue teams, the Administration stated that it planned to evaluate non-regulatory alternatives to 

that proposal. What have you done to evaluate those non-regulatory alternatives? What would those non-regulatory alternatives be? What have been the 

results of your evaluation thus far? 

13. What is the state of your inspector workforce? In a September 2003 report, 

the GAO warned that 44 percent of MSHA’s inspectors would be eligible to retire 

within 5 years. Are we facing a shortage of qualified mine inspectors? 

14. What impact has the loss since 2001 of 190 authorized coal enforcement personnel had on MSHA? 

15. When the Administration withdrew the Clinton-era proposal to improve the 

use of self-contained self-rescue devices, the Administration said it was withdrawing 

the item ‘‘in light of resource constraints and changing safety and health regulatory 

priorities.’’ What were those resource constraints? What were those changing safety 

and health regulatory priorities? 

a. When the Administration withdrew the Clinton-era proposal to improve accident investigation hearing procedures, the Administration said it was withdrawing the item ‘‘in light of resource constraints and changing safety and 

health regulatory priorities.’’ With respect to this proposal, what were those reVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
47

source constraints? What were those changing safety and health regulatory priorities? 

b. When the Administration withdrew the Clinton-era proposal that included 

requirements for technology to strengthen protections against two-story high 

trucks that haul coal, the Administration said it was withdrawing the item ‘‘in 

light of resource constraints and changing safety and health regulatory priorities.’’ With respect to this proposal, what were those resource constraints? 

What were those changing safety and health regulatory priorities? 

c. When the Administration withdrew the Clinton-era proposal to lower exposure to silica to prevent silicosis in mineworkers, the Administration said it was 

withdrawing the item ‘‘in light of resource constraints and changing safety and 

health regulatory priorities.’’ With respect to this proposal, what were those resource constraints? What were those changing safety and health regulatory priorities? 

d. When the Administration withdrew the Clinton-era proposal to provide 

new safety standards for specific conditions in anthracite mines, the Administration said it was withdrawing the item ‘‘in light of resource constraints and 

changing safety and health regulatory priorities.’’ With respect to this proposal, 

what were those resource constraints? What were those changing safety and 

health regulatory priorities? 

e. When the Administration withdrew the Clinton-era proposal to increase the 

number of hours of annual refresher training for mine supervisors, the Administration said it was withdrawing the item ‘‘in light of resource constraints and 

changing safety and health regulatory priorities.’’ With respect to this proposal, 

what were those resource constraints? What were those changing safety and 

health regulatory priorities? 

f. When the Administration withdrew the Clinton-era proposal to address the 

safe design and construction of impoundments at metal and nonmetal mines, 

the Administration said it was withdrawing the item ‘‘in light of resource constraints and changing safety and health regulatory priorities.’’ With respect to 

this proposal, what were those resource constraints? What were those changing 

safety and health regulatory priorities? 

g. When the Administration withdrew the Clinton-era proposal to revise and 

clarify a standard to require underground metal and underground non-metal 

mines to have at least two separate exits to the surface, the Administration said 

it was withdrawing the item ‘‘in light of resource constraints and changing safety and health regulatory priorities.’’ With respect to this proposal, what were 

those resource constraints? What were those changing safety and health regulatory priorities? 

h. When the Administration withdrew the Clinton-era proposal to address a 

gap in the regulation that prohibits people from walking on or around surge or 

storage piles but allows vehicles and equipment to be operated on the piles ‘‘in 

light of resource constraints and changing safety and health regulatory priorities.’’ With respect to this proposal, what were those resource constraints? 

What were those changing safety and health regulatory priorities? 

i. When the Administration withdrew the Clinton-era proposal to explore both 

regulatory and non-regulatory ways to eliminate or reduce hazards associated 

with confined spaces in mines, including entrapment by shifting piles, falling 

into materials, and being struck by overhanging materials ‘‘in light of resource 

constraints and changing safety and health regulatory priorities.’’ With respect 

to this proposal, what were those resource constraints? What were those changing safety and health regulatory priorities? 

j. When the Administration withdrew the Clinton-era proposal to specify the 

proper equipment electrical grounding, in light of accidents occurring from inadequate and improper grounding of power mining equipment ‘‘in light of resource 

constraints and changing safety and health regulatory priorities.’’ With respect 

to this proposal, what were those resource constraints? What were those changing safety and health regulatory priorities? 

16. A February 27th, 2006 article in USA Today stated that ‘‘federal inspectors 

routinely concluded that safety violations at the Sago Mine endangered only one 

person, findings that helped keep fines to a minimum before the disaster killed 12 

miners in January.’’ We understand that, if a violation is deemed to endanger more 

than one person, the fine may go up dramatically. 

a. Sago had six citations for blocking escapeways that miners use to flee a 

fire or explosion. Each citation said only one miner was endangered by the 

blocked escapeway. The mine paid $60 fines for each of two such violations. 

Why would only one miner be endangered by a blocked escapeway? 

48

b. On August 16, 2005, an inspector found ‘‘chemical smoke’’ being blown toward areas where two mining teams were working. A team typically has eight 

to ten miners. The citation said one miner was endangered. Why would only one 

miner out of a total of two mining teams be endangered by chemical smoke? 

c. Sago was cited for 22 violations from July 2004 to December 2005 for ‘‘accumulation of combustible materials’’—coal dust and coal chunks that can spread 

fires and explosions. All 22 violations said one miner was endangered. Why 

would only one miner out of an entire underground workforce be endangered 

by the accumulation of combustible materials each time? 

i. Across the board, is this a common practice? What does it accomplish 

other than deflating the fines that may be assessed for a safety or health 

violation? 

Questions for National Mining Association (NMA) Witness 

1. Is the NMA prepared to support any of the legislation that has been introduced 

to-date in the U.S. House or Representatives or the U.S. Senate? 

2. You remember the efforts of this House about a decade ago to eliminate the 

Mine Safety and Health Administration (MSHA), to cut the number of mandatory 

inspections, and to otherwise weaken protections in this Nation’s mines. Did your 

organization support those efforts? Does your organization believe any strengthening of the law is required, for example to deal with scoff-laws who refuse to pay 

penalties after all the adjudication is completed? 

3. It is widely accepted in Australia and other nations that a safe and healthful 

mine is a productive mine. Given this country’s increased demand for coal, isn’t it 

the obligation of this Congress to give MSHA more vigorous enforcement authority 

so it can ensure that each mine operator understands this simple but fundamental, 

guiding principle? 

4. What does your organization think about a user fee which would fund MSHA 

compliance assistance activities, so that it would be able to provide you with such 

services while using the taxpayers’ money to fund enforcement? 

Questions for the United Mineworkers of America (UMWA) Witness 

1. Why do you think MSHA has yet to require mine operators to use a continuous 

dust monitor to help bring new cases of black lung disease to an end? 

2. The mining industry has recently renewed its efforts to bring in foreign workers to operate the nation’s mines. Aren’t there plenty of our own young people who 

have gone through the basic training required for these jobs? Does this body need 

to do something more to help ensure the new generation of miners is trained in 

avoiding safety and health hazards? 

3. The UMWA serves as a miners’ representative in the Sago investigation. Could 

you describe the role of a miners’ representative in an investigation? Has the miners’ representative been permitted to attend all the witness interviews at Sago? 

Mr. OWENS [continuing]. For those few, can you give me one or 

two examples of why you withdrew the mine safety health? 

Mr. FRIEND. First of all, most of those, or a lot of them, were advance notices of proposed rules. They were not proposed rules, 

which makes a difference. A lot of administrations puts things on 

the regulatory agenda to seek information from the public, and 

that is what a request or advanced notice of proposed rulemaking 

is, such as the mine rescue teams was. 

The SCSR proposed rule, or ANPR, whichever one it was, and I 

am not really sure—the rationale for the core issue was to reduce 

the shelf life from 10 years to 5 years. 

Actually, NIOSH is drafting a rule now on SCSRs along with us. 

We do the approval for the explosiveness, and so it would be a joint 

effort. 

Mr. OWENS. Would you agree with me that the coal mine industry is not in any fiscal difficulties that would prevent them from 

going forward to implement these procedures? It is quite well off 

in terms of its profits at present. 

Mr. FRIEND. Well, I cannot speak for the coal industry, but the 

profits probably are pretty good, considering the price of coal. 

49

Mr. OWENS. Maybe Mr. Watzman will tell us. 

Is there any problem with not being able to finance these safety 

measures? 

Mr. WATZMAN. Congressman, as I said before, this industry has 

shown repeatedly that it will spend the money to provide a safe 

and healthy environment when the technology is available. 

Mr. OWENS. Mr. O’Dell, will you comment on that, please? 

Mr. O’DELL. Yes, sir. I would like to make a couple of comments, 

if I may, on some of the things that you have said and some of the 

other members have said, if I may, just to clear up. 

There has been some information that was given today that may 

not be accurate. Self-rescuers, self-contained self-rescuers—the 

same units that I wore when I worked underground in 1977. There 

has been no improvements. That is sad. 

The miners that provide energy to this country today have to rely 

on a 1-hour unit to get them out. I would suggest to anybody in 

this room, if they knew they only had 1 hour of oxygen to get out 

of this room, if they would stand still for that. It is time to move 

on and develop something better than what we have today. 

To suggest that the mining industry is safer now than it was before—if you look at it, we have had 21 fatalities this year. If you 

go back to February of last year, in a 12-month period up to now, 

we have had 43 total mine fatalities in that 12-month period. That 

is unacceptable. It should never be acceptable. 

To clear up what is going on in West Virginia with the commission on the 90 days, I helped set that up. We have three members 

who sit on that commission. Three members represent industry. 

Three members represent labor. 

What they are to do is look at what is available today, because 

we believe there are systems out there available today with better 

communications, better self-rescuers, better forms of oxygen, and 

that panel is instructed to deliver all those available technologies 

to Governor Manchin. 

I personally talked with Governor Manchin. And if they cannot 

come to a conclusion after 90 days, Governor Manchin will push his 

bill as it is written, and it will move forward. 

Belt air—the only reason we have belt air ventilating coal mines 

today is because of poor planning. Operators got behind on their 

long wall developments. 

And if you ask any of these miners behind me, they will tell you 

they sat in meetings with mine management, and they have come 

to them to ask them to help get belt air to ventilate their mines 

because they got behind on their long wall developments. 

We had to reduce down to three entries, so now you only have 

three entries to ventilate the coal mines. that is unacceptable, and 

that is the only reason. 

Congress prohibited the use of belt air ventilation, and they need 

to go back and reinforce that rule that they have on the books. 

Chairman NORWOOD. Thank you, Mr. Owens. 

Mr. OWENS. Thank you, Mr. Chairman. 

Chairman NORWOOD. Senator Kline, you are recognized now for 

5 minutes for questioning. 

And I remind us all we have a vote at 1:30. Oh, okay, good, we 

are good to go. Three o’clock. 

50

Go ahead. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank you, gentlemen, for being here. I want to identify myself 

with the remarks of the chairman early on that I am not a miner 

and I do not think any of us are miners. 

I have been in a mine one time, and that was scary enough for 

me, so my hats off to the miners who do this every day—fairly 

amazing career choice. 

Let’s see whose testimony—it looks like this is Mr. Friend’s testimony. On page eight there is a fairly interesting chart on coal mining fatalities going back to 1978 and up to 2005. That is a trend 

line that we would like to see, I think, in the long range. It is going 

down, the number of fatalities, on an angle about like that. 

Then on page 10, there is another chart that is much shorter. 

This is incident rates going from 2000-2005. I am curious as to 

what that would look like if it went back to 1978. 

In other words, are the rates going down on the same sort of 

trend line that the total fatalities are? Do you happen to know off 

the top of your head? 

Mr. FRIEND. Well, just off the top of my head, from 1996, for example, to 2000, the incidence rate was above five, to give you a little bit of comparison. And in 2001 it dropped to 4.75, 4.60, 4.23, 

4.05, and currently, for 2005, and with preliminary data, it is down 

to 3.89 total incidence rate. 

Mr. KLINE. Okay. 

Mr. FRIEND. So it was in the fives. 

Mr. KLINE. Again, it is important to look at it over along term, 

because you can have spikes in any given time. And I bring this 

up because I sort of had a flashback when I looked at this in my 

earlier life when I was a naval aviator, a Marine pilot. 

If you look at the number of accidents and accident rates in 

naval aviation over that similar period of time, the line looks pretty 

much the same; that is, when I was a young man back in the 

1960s, the naval aviation accident rate was horrific. And today, it 

is much better. And we have had this sort of trend line. 

And there are some key events that took place, and I am working 

up to a point here, but—some key events that took place over time. 

One of them was the development of standard operating procedures. You know, in naval aviation, that is pretty easy to dictate. 

And you talked about—I am going to kind of scan the panel here. 

You have over 600 mines operating in the United States. You have 

your agency overseeing it. You have interaction with labor, with 

the unions. Is there such a thing? 

You talked about, you know, get out, I think, Mr. Friend, you 

said on your hat. Is there such a thing as a standard operating procedure across the industry that would tell everybody, in red—is it 

on everybody’s hard hat, get out? 

I am looking for where would that come from. Is that your job 

to come up with such a thing? Is it industry’s job? Is it a collaborative effort that has to be done with the union? 

And I will start with you, Mr——

Mr. FRIEND. We have been teaching and training that for many 

years, even prior to the MSHA days. That was standard operating 

51

procedure. Where I said we probably failed is we did not reiterate 

it as much as we should. 

Now, in my opening statement, I mentioned that we are working 

with industry and others to put together a procedure that should 

be followed in such an event. One of those things will be stressing 

evacuation. 

Mr. KLINE. Well, I really did not mean to address that specific—

I am just using that example, that little get out in an hour red and 

black sign. The point is is there standard operating procedures that 

is available across the industry that would include things like that. 

Mr. FRIEND. I do not know of a template, what each company is 

using. 

Mr. MCKINNEY. We have training plans—excuse me. If I may respond. 

Mr. FRIEND. Yes. 

Mr. MCKINNEY. We have training plans that we require at every 

coal mine, and when you hire in at a coal mine, you employ experienced miner trainer or inexperienced miner training—it is required 

that you are covered with those folks escape and evacuation procedures. 

So anybody coming to work at a coal mine—they go through 

those procedures with them. Then there is annual refresher training once a year. 

Mr. KLINE. Okay. 

Mr. FRIEND. But in a broader term, I think you are talking about 

the procedures in case of an emergency, getting the teams there, 

getting the people who needs to be there——

Mr. KLINE. Right. 

Mr. FRIEND [continuing]. The whole thing. 

Mr. KLINE. Right. 

Mr. FRIEND. And I do not know that—I do not think each mine 

has a standardized plan, but perhaps Mr. Watzman can——

Mr. KLINE. Well, I would just—I see my time is rapidly expiring. 

I would just suggest—and that is a fairly useful thing to think 

about whether it is the industry or the regulators or the miners 

themselves, to think about how that might come to use. 

And then one more comment about that. We found in that same 

naval aviation analogy that there came to be points where no matter what your SOP said, you needed a change in material. And part 

of getting that accident rate down was making the flying machines 

better. 

And that gets to the technology point, which I hope that all of 

us collectively are going to continue to work for. I see my time has 

expired. 

Mr. Chairman, I yield back. 

Chairman NORWOOD. Thank you, Mr. Kline. 

Ms. Woolsey, you are recognized now for 5 minutes. 

Ms. WOOLSEY. Thank you, Mr. Chairman. This is an improvement over our last hearing on the same subject, because at that 

hearing I remember several people, including a representative from 

the Heritage Foundation, who had never even been in a mine, who 

thought he could sit there and tell us how much we did not need 

the standards and the safety rules that we were working on at that 

time. 

52

Who can tell me—Mr. Secretary, can you tell me or tell us how 

many on-site inspections Sago has had over the last 2 years and 

how many withdrawal and returns at the Sago Mine? 

Mr. FRIEND. Well, I can tell you what they had in 2005, and I 

do not know if——

Ms. WOOLSEY. Well, that is a beginning. 

Mr. FRIEND [continuing]. Goes back to 2004 or not, but——

Ms. WOOLSEY. Well, let’s have 2005. 

Mr. FRIEND. They had their mandated inspections and 208 citations and orders were issued at the Sago Mine in 2005. Eighteen 

of those were withdrawal orders, where the miner was actually 

withdrawn and the piece of equipment or the area of mine as shut 

down, so they lost production. 

We increased enforcement that year because of the spike in their 

incidence rate. Management with MSHA met over 20 times with 

the management of the Sago Mine. 

Ms. WOOLSEY. Well, do you think it is because $60 was a fine 

instead of a hefty fine? 

[Applause.] 

Would that have made a different to the——

Mr. FRIEND. And as noted, we are revising part 100. 

Ms. WOOLSEY. Well, cause and effect. The Mosaic Company mine 

in Saskatchewan, Canada had a disaster. All 72 miners escaped. 

Now, it was not a coal mine. It was a potash mine. It was a fire. 

But they escaped because they had rescue chambers. They had a 

place to go while they were waiting to be rescued. 

Mr. Watzman, is that one of your recommendations from your organization? I mean, you are the National Mining Association. 

Would that be a recommendation to MSHA that that be something 

that we need to——

Mr. WATZMAN. Rescue chambers are being examined currently by 

our member companies to determine their application in the underground mines. You have touched upon the most important distinction. That was not coal. 

The ore body there, in and of itself, did not burn, and they used 

different mining practices that made that mine accommodating to 

a rescue chamber. But coal companies are examining the application of those, how to install them, where they might be installed 

in underground coal mines today. 

Ms. WOOLSEY. Well, don’t you think that if you were in a coal 

mine fire, don’t you think you would be safer if you were in one 

of these rescue chambers? Wouldn’t you rather a rescue chamber 

than hanging out there with a red something on your safety helmet 

that says evacuate, when you do not know where to go? 

Mr. O’DELL. Ms. Woolsey? 

Ms. WOOLSEY. Yes. 

Mr. O’DELL. May I speak to that, please? 

Ms. WOOLSEY. Yes. 

Mr. O’DELL. First and foremost, we want to be able to get out 

of the coal mines. 

Ms. WOOLSEY. Absolutely. 

Mr. O’DELL. And so what we push for as miners is better protected intake escape ways, which has not been done in the past 

years. 

53

But such as the case that happened at Sago, had they have had 

mine chambers, those miners would have been alive today. I believe that the best plans go wrong, and we have been in contact 

with manufacturers out there who build these mine chambers, and 

we believe they can be used throughout the mining industry. 

We have seen them where they can be built for low coal, for high 

coal. We have seen them to where they can be rubber-tired, to 

where they can move in and out, rail mounted, as well as able to 

put them in crosscuts. 

So we think that they should be mandated as a backup resort. 

If we cannot escape, it would be nice to know that there would be 

some place to go in the event that all else would fail. 

Ms. WOOLSEY. Well, thank you. While I have got your attention, 

would you tell me if there are any other proposed rules that have 

been withdrawn from MSHA, Mr. O’Dell, that you think make it 

even more dangerous for miners? Which are the most—the rules 

that have been withdrawn that make it most dangerous? 

Mr. O’DELL. I guess I should also back up and say that in the 

1969 and 1977 mine act that the secretary actually mandated 

that—it was mandated by the mine act that the secretary may require the use of such chambers. 

And because the language ‘‘may’’ was there, I guess they never 

moved on it. But there is language in the mine act that allows that 

to happen. 

Self-contained self-rescuers—we believe we need to improve upon 

those and move forward with those. We believe those technologies 

have not moved quickly enough, as we had stated before. Better 

protected intake escape ways. 

We believe that the investigative process being used during mine 

fatality investigations needs to be improved upon. The problem is 

that there is a whole world of technology out there, and nobody is 

talking. 

We have actually sat down and talked with folks from NASA. We 

have talked with folks from the Navy. We have talked with folks 

from throughout the country who says hey, this technology is here. 

It is there, but nobody is talking with each other, and nobody 

makes it apply to the mining industry. 

I mean, I would love for everybody at this table or everybody in 

this room to be able to have the opportunity to sit down and see 

what is actually available. You would be shocked to find out what 

there is. 

Ms. WOOLSEY. And is not available. 

Chairman NORWOOD. Thank you——

Ms. WOOLSEY. Or what is available in the marketplace, you 

mean, already. 

Mr. O’DELL. Well, for instance, communications wise——

Ms. WOOLSEY. All right. 

Mr. O’DELL [continuing]. We have been told by the Navy—and 

there is a group from the aviation department, actually from the 

Pentagon, who is working on a wireless system right now out of the 

University of Texas that believes that there is a system that can 

be applied to the mining industry that can be used to utilize communications not only in the event of emergencies, but we have comVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
54

munication problems on a day-to-day basis, so that could be applied 

on a day-to-day basis as well. 

So the communications systems, we believe, are there. The oxygen systems, whether it be the mine chambers or whether it be 

new, improved self-contained self-rescuers—it is a shame we have 

not moved on that. 

Chairman NORWOOD. Thank you, Mr. O’Dell. That sounds like a 

very good hearing for us to bring in some of these experts and see 

really what is available to us. 

I would love to do that, Mr. Owens, if you would work with me 

on that. 

Just quickly, mine arts, you are familiar with those, Mr. McKinney, from Australia? 

Mr. MCKINNEY. Yes. 

Chairman NORWOOD. Yes. They look pretty neat to me. Maybe 

we ought to look at one some time. 

I want to thank all of you——

Mr. MILLER. May I respond to one question, please? Do we get 

a second round of questions? 

Chairman NORWOOD. No, sir. We are going to have a lot of hearings, though. 

Mr. MILLER. Well, this is bullshit. I mean, you have people here. 

Chairman NORWOOD. When you get in charge, you get to run the 

damn thing. Right now, you are not. 

Mr. MILLER. No, it is not about being in charge. It is about you 

have people here——

Chairman NORWOOD. I want to thank each of——

Mr. MILLER [continuing]. To answer questions about the safety—

and we do not get to ask the questions. 

Chairman NORWOOD. I know I appreciate your time and expertise. 

Mr. MILLER. It is incredible. 

Chairman NORWOOD. And I expect my colleagues do as well. 

Mr. MILLER. First hearing in 5 years, and you cannot have questions at the hearing. 

Chairman NORWOOD. As I indicated at the start of this hearing, 

today is the first of a series of hearings I expect——

Mr. MILLER. No wonder nothing gets——

Chairman NORWOOD [continuing]. Our subcommittee——

Mr. MILLER [continuing]. Done downtown. 

Chairman NORWOOD [continuing]. Will conduct in this Congress 

relating to mining, mine safety and the need for changes, if any. 

I expect we will hear more about various legislative proposals 

from our colleagues in the House and from this subcommittee. 

Mr. MILLER. Mr. Chairman, I move that members of the committee have an additional round of questioning, which is the ordinary course of business in every other committee hearing I have 

been in. 

Chairman NORWOOD. That is just not the truth. It has not——

Mr. MILLER. Maybe not where you run them. This is the first 

time I have sat——

Chairman NORWOOD. There has not been a second round of committee——

Mr. MILLER. We are not having a vote until 3 o’clock. 

55

Chairman NORWOOD. I have another committee hearing going on 

right now. 

Mr. MILLER. No, we have these people here to ask questions 

about today, about what is going on, when miners and their families want to know what the hell is going on, and the only thing we 

see is once we had a disaster, they started moving. 

Chairman NORWOOD. I apologize, folks. This committee is adjourned. 

[Whereupon, at 1:28 p.m., the subcommittee was adjourned.] 

[Additional material submitted for the record follows:]

Response From Robert M. Friend, Acting Deputy Assistant Secretary of 

Labor for Mine Safety and Health, to Supplemental Questions 

1. News reports have indicated that MSHA investigators have declined to interview 

the mine rescue teams which participated in the rescue attempts at the Sago and 

Aracoma Alma mines. This has caused much concern among the rescue team members, the families of the victims, and the mining communities. Do MSHA accident 

investigation procedures require such interviews? How can we ensure future rescue 

teams are prepared for their tasks without interviewing those who have recently had 

to perform rescue duties?

The MSHA investigations into the Sago and Aracoma Alma accidents are ongoing. 

I can assure you the necessary mine rescue personnel have been interviewed. With 

regard to required accident investigation procedures, the investigation team, in consultation with senior MSHA management, has discretion to interview those witnesses deemed necessary to the investigation.

2. The regulations currently provide that with the exception of small and remote 

mines and those operating under special mining conditions, every operator of an underground mine is to establish or enter into an arrangement for two mine rescue 

teams to be available at all times when miners are underground. How does MSHA 

ensure compliance with this requirement? Is this something checked during mandatory and spot-inspections? How many operators have been cited by MSHA over the 

last year for failure to comply with the requirements of 30 CFR 49.2 and what penalties have been assessed?

Both Metal and Nonmetal (MNM) and Coal Mine Safety Inspectors ensure that 

the requirements of Part 49—Mine Rescue Teams are being complied with by mine 

operators during each mandatory regular inspection of underground mines. Four 

MNM mine operators have been cited during 2005 for violations of 30 CFR 49.2, 

which are primarily paperwork violations. The assessed penalty for each violation 

was $60. Five coal mine operators were cited during 2005 for violations of 30 CFR 

49.2 and they received similar proposed civil penalties.

3. Has MSHA delegated any responsibility to ensure compliance with this requirement to any of the States? Do any of those states have requirements concerning rescue 

teams that differ from those under 30 CFR 49.2?

MSHA has not delegated responsibility to ensure compliance with 30 CFR 49.2 

to any of the States, and does not have the authority to do so.

4. How many underground coal mines and how many underground MNM mines 

currently meet this requirement by establishment of their own rescue teams?

Sixty-one MNM mines and 80 coal mines maintain their own mine rescue teams.

5. How many underground coal mines and how many underground MNM mines 

currently meet this requirement by entering into an arrangement for mine-rescue 

services rather than establishing their own rescue team? Of these, how many contract 

with a state to provide rescue services? How many contract with the operators of 

other mines? Do any contract with local rescue services or fire departments? How 

does MSHA ensure that these non-resident teams are trained and equipped in accordance with the requirements of 30 CFR Part 49?

• 163 MNM mines and 689 coal mines have entered into arrangements for minerescue services. 

• 39 MNM mines and 383 coal mines have arranged through the state to provide 

mine-rescue service. 

• 50 MNM mines and 200 coal mines have arranged for mine-rescue coverage 

with other mines. 

56

• 74 MNM mines and 106 coal mines have arranged for mine rescue coverage 

with local rescue services or fire departments. • Physical inspections of independent and contract rescue stations are conducted 

quarterly by MSHA to verify compliance with the regulations. State mine rescue 

stations are inspected when such stations are utilized for compliance with Part 49.

6. How many underground coal mines and how many underground MNM mines 

are currently considered ‘‘small’’ or ‘‘remote’’ for the purpose of this requirement? How 

frequently does MSHA review their mine-rescue plans?

Forty MNM mines have approved rescue plans under the ‘‘small and remote’’ criteria. Coal has 30 ‘‘small’’ or ‘‘remote mines.’’ Annual reviews are conducted to ensure these alternative mine-rescue capability plans are appropriate.

7. How many underground coal mines and how many underground MNM mines 

currently operate ‘‘under special mining conditions’’ for the purposes of this requirement? How frequently does MSHA review their mine rescue plans?

Eighty-three MNM mines, operating under special mining conditions as set out 

in Part 49, have approved alternative plans assuring that suitable mine-rescue capability is provided. Annual reviews are conducted to ensure alternative mine-rescue capability plans are appropriate. All underground coal mines are in compliance 

with rescue team requirements without resorting to the special circumstances test 

of Part 49. All underground mines have mine-rescue team coverage. MSHA reviews 

mine-rescue team arrangements during regular inspection activities.

8. What procedures does MSHA have in place to coordinate its activities during 

an emergency with local first responders such as police, rescue and fire departments? 

Does MSHA have funds dedicated to training first responders about special needs in 

mine emergencies? Are mine-rescue teams required to invite local first responders to 

participate in required training sessions?

The MSHA Metal/Non-Metal directorate maintains a Mine Emergency Plan for 

each district. This plan includes the contact information for local first responders 

such as police, rescue and fire departments. Coal Emergency Plans maintained by 

the MSHA Coal directorate list all applicable emergency numbers including ambulance and first responder contacts. There is no requirement in mine safety standards that mine rescue teams invite local first responders to training sessions; however, it is acceptable to do so. MSHA does not fund training of first responders although MSHA does discuss these issues and works with first responders whenever 

possible. MSHA has participated in a limited number of drills or training exercises 

with first responders. MSHA makes every effort to work cooperatively with all State 

and local authorities during emergencies although the precise protocol is not established by procedures. MSHA is implementing the requirement in the MINER Act 

that each underground coal mine operator have an approved emergency response 

plan.

9. Why did this Administration withdraw from its rulemaking agenda initiatives 

that would have addressed some of the safety hazards that have led to the recent loss 

of lives underground? Why haven’t you restarted each one of these initiatives?

It would be premature to address perceived causes of the two fatal West Virginia 

mining accidents at the Sago and the Aracoma Alma No.1 Mine and provide presumed solutions before the actual causes have been identified by professional staff 

trained to render such judgment. MSHA and other authorities are still conducting 

their investigation to determine the causes of these accidents. 

MSHA is unaware of any withdrawn rulemaking initiative that would have prevented the recent loss of lives underground. 

In December 2001, MSHA withdrew a rulemaking from our regulatory agenda 

that would have primarily addressed the service life of Self-Contained Self-Rescuers 

(SCSRs), and the appropriate inspection of SCSRs, as well as some issues regarding 

training. In July 1999, MSHA had published an advance notice of proposed rulemaking soliciting information on a variety of issues related to SCSRs but did not 

propose a rule. A primary objective of this rulemaking initiative was to address the 

reliability of SCSRs, primarily by shortening the accepted service life of the SCSRs. 

We determined that this objective could be and was in fact being appropriately addressed by working with NIOSH to increase reliability of SCSRs through improvements in technology. NIOSH and MSHA are currently active in monitoring SCSR 

performance and NIOSH is testing additional features designed to monitor the reliability of approved SCSR devices. 

MSHA and NIOSH have confirmed that the SCSRs used at Sago Mine were all 

functional and had all been partially used. MSHA has required additional training 

in the use of SCSRs and we encourage miners to quickly don SCSRs immediately 

in the event of explosion or fire. MSHA’s emergency temporary standard (ETS), pubVerDate 0ct 09 2002 13:50 Oct 30, 2006 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 H:\DOCS\WP\3-1-06\26424.TXT EDUWK PsN: DICK
57

lished on March 9, 2006, assures that miners receive the necessary evacuation 

training and additional SCSR training under realistic conditions, and that miners 

have additional equipment available (SCSRs and lifelines) to successfully evacuate 

the mine during an emergency. We are exploring the efficacy of newer tracking, 

communication, and other mine rescue technologies to determine if they are safe 

and effective for use in an underground coal mine environment after a mine fire, 

explosion, or inundation. 

The MINER Act requires operators of underground coal mines to improve accident 

preparedness and emergency response. They must develop and adopt an emergency 

response plan specific to each mine they operate. Emergency response plans must 

address post-accident communication and tracking systems, post-accident breathable 

air, schedule for maintenance and checking the reliability of self-contained self-rescuers (SCSRs), training for SCSRs and lifelines. 

In December 2002, we withdrew an advance notice of proposed rulemaking 

(ANPRM), which had been on the Regulatory Agenda since 1999. This ANPRM solicited ideas from the mining community about where we might increase flexibility 

and provide increased safety for miners in our current regulations on mine rescue 

teams. However, this ANPRM did not produce promising suggestions. The mining 

community insisted that monetary incentives would be required for mine operators 

to increase the number of mine-rescue teams. Each of the incentives suggested 

would have either reduced safety (e.g., decrease the amount of training; reduce the 

assessed penalties if the mine operator had a mine-rescue team); or exceeded the 

scope of MSHA’s authority (e.g., provision of tax incentives). We continue to promote 

mine rescue teams and work through non-regulatory means to increase the number 

of teams. MSHA is implementing requirements in the MINER Act related to mine 

rescue teams.

10. You have announced you will be using the agency’s authority to issue emergency temporary standards to deal with a few of the safety hazards that have received public attention since the Sago accident. On the other hand, you seem to be 

moving at a much slower pace in adopting rules requiring new communications technologies which could have saved lives in that tragedy? Is this because the industry 

has threatened you with a lawsuit? What can this Congress do to ensure these lifesaving devices get into our mines before more lives are lost?

MSHA is moving expeditiously to implement the MINER Act and other regulations that it believes will further protect miner health and safety. 

MSHA’s pace in adopting rule changes regarding communications technologies is 

dependent on the limitations of the currently available technologies and the current 

state of development of other technologies. 

The majority of currently available, MSHA-approved communication systems are 

dependent on a wire-backbone, or installed wires or cables that provide power and 

a communication signal. Systems dependent on a wire-backbone would likely be 

compromised in a fire or explosion which could sever the wire connection rendering 

the system inoperable. The only MSHA approved system that does not necessarily 

require a wire-backbone is the Mine Site Technologies Personal Emergency Device 

(PED) system. MSHA has investigated the PED and determined that it has serious 

limitations during emergencies, such that making the use of this specific device 

mandatory would be problematic at this time. First, the system’s performance is 

predicated on the installation of a large loop antenna, which must be installed on 

the surface for the system to operate during an emergency. Some mines may have 

too much overburden or do not own the property rights, making surface installation 

impractical. Second, evaluation of the PED has revealed performance concerns regarding ‘‘shadow zones’’—certain places in underground mines where there is no signal received by the PED. Third, PED is a one-way paging system, meaning that the 

message sender cannot receive confirmation that the message has been received. 

MSHA is also currently investigating other wireless communication technology. 

We have received more than eighty (80) proposals in response to our request for 

communication and tracking system suggestions. None of the proposals received are 

currently approved as safe for use by MSHA. In reviewing the proposals, there are 

a number that have great potential. We have selected several of the most promising 

proposals that offer two-way wireless communications and are conducting field tests 

of these systems. We plan to evaluate performance and capabilities of these systems 

and share the findings with all concerned parties. Our expectation is that more 

state-of-the-art systems will soon be available for America’s mines, offering a wider 

choice of communication and tracking systems with improvements in coverage, reliability and range.

11. For many years, permitting air used to ventilate the mine to run over conveyor 

belts, which generate friction and sparks, was prohibited by law. Exceptions were 

58

only permitted after a public hearing and a determination by MSHA that the mine 

operator would observe a set of conditions specifically designed to limit the risk of 

fire in that mine. This Administration ‘‘green lighted’’ the use of ‘‘belt air’’ with a 

new regulation. In light of the Aracoma-Alma fire, why isn’t MSHA seeking to put 

a hold on its ‘‘belt entry rule?’’

The investigation at the Alma No. 1 mine is ongoing, and we cannot yet be certain 

of its ultimate findings. As the US. Attorney has stated, we have made a criminal 

referral of the preliminary findings at the Aracoma Alma No. I Mine. 

We believe from our preliminary investigation that the use of belt air did not contribute to the severity of the accident. The Aracoma Alma No. 1 belt air petition 

was approved by the Agency in 2000 and contained routine requirements. The final 

belt air rule actually increased miner protection at Alma No. 1 by including various 

requirements that were not included in the granted petition. 

MSHA has determined that the recent ‘‘belt air’’ rule increases protection for miners by adding various requirements that were included only in some granted petitions, and by making all mine operators comply with the same strict safety conditions when choosing to use belt air. For example, all sensors must be listed by a 

Nationally Recognized Testing Laboratory, such as Underwriter’s Lab; the trunk 

lines for the communication system and the Atmospheric Monitoring System (AMS) 

must be installed in separate entries; carbon monoxide sensors must be installed in 

the intake escapeways; point-feeds must be monitored; sensor spacing must be reduced to 1,000 feet; alert and alarm levels must be reduced to 5 and 10 ppm; all 

outby sensors must automatically notify sections of alarms; and lifelines are required when returns are used as alternate escapeways. 

The recent ‘‘belt air’’ rule also provides additional protections for use of belt air 

to ventilate areas where mechanized mining equipment is being set up and removed. Before the ‘‘belt air’’ rule, this practice would have been permitted without 

additional protections. 

Some advantages of using belt air to help ventilate working places include: reducing dangerous methane concentrations; promoting the use of technologically advanced early-warning fire-detection systems; and reducing the number of additional 

entries required. There are also certain ground control advantages realized by being 

able to limit the number of development entries, such as reducing the probability 

of roof falls and rib outbursts. A recent analysis of accident and injury data reveals 

that there has never been a fatality attributed to fire or air contaminants being carried by belt air to the face of a coal mine. 

Since 1978, MSHA has evaluated about 90 petitions for modification to allow the 

use of belt air to ventilate working places in an underground coal mine. MSHA’s 

experience over more than 25 years has established that the use of belt air is safe, 

provided that specified conditions, designed to maintain the level of safety and 

health, are met. The rulemaking itself, which began in 1983, was completed in 2004. 

There was appropriate notice and comment throughout the history of this rulemaking. 

The U.S. Court of Appeals for the D.C. Circuit in International Union, United 

Mine Workers of America v. Mine Safety and Health Administration, 407 F.3d 1250 

(D.C. Cir. 2005), affirmed that the belt air rule did not violate section 101(a)(9) of 

the Mine Act, which states—

No mandatory health or safety standard promulgated under this title [Title 30] 

shall reduce the protection afforded miners by an existing mandatory health or safety standard. 

MSHA is implementing the provision in the MINER Act related to the use of belt 

air in underground coal mines.

12. We have seen a news release announcing a new review of the penalty assessment process at MSHA, but nothing more than a news release. What is the scope of 

this effort and when can we expect some answers?

MSHA published a Notice of Proposed Rulemaking (NPRM) on September 8, 2006. 

The rulemaking will implement penalty provisions in the MINER Act, and will also 

revise the existing penalty structure and the process for issuing proposed penalties. 

This rulemaking is a high priority and will be completed within the required timeframe. Public hearings began in September and will continue in October, 2006.

13. You appear to have succeeded in greatly angering the families of the victims 

of these tragedies by, to date, keeping them from hearing witnesses who may be revealing information about the last hours of their loved ones. Why did MSHA withdraw proposed rules that would have, after public notice and comment, established 

procedures for public hearings and accident investigations?

On the contrary, MSHA has taken a number of steps to fully inform the families 

of the miners who were killed in the Saga Mine explosion, the Aracoma Alma Mine 

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fire and Darby Co. mine explosion about critical information and the status of the 

agency’s investigations. Ten MSHA officials and technical experts, including the 

chief accident investigator, met with the Sago families for four and a half hours on 

March 9, 2006 in Buckhannon, WV. Another meeting of similar length with the 

Sago families was held on April 13, 2006. At that time, the families were given an 

advance set of the transcripts of the private interviews conducted during the accident investigation and we again answered questions and discussed the status of the 

ongoing investigation. On May 2-4, 2006 the Sago families had another opportunity 

to participate in the investigation by submitting questions to witnesses during the 

joint MSHA/ WV public hearing into the accident. In addition, MSHA’s chief accident investigator has been in regular contact with the two families that were most 

directly affected by the Aracoma Alma Mine fire and they both have expressed appreciation for the regular updates. MSHA used a similar approach with one of the 

victim’s families from Darby who desired regular updates on the Agency’s progress 

in that investigation. MSHA is implementing the requirement in the MINER Act 

to establish a family liaison policy. 

MSHA’s draft procedures for conducting public hearings were never published as 

proposed rules. The regulatory agenda item relating to public hearing procedures 

was withdrawn in favor of focusing resources on other priorities.

14. After tragedies like this, how should MSHA’s own conduct be assessed? Don’t 

we need some independent jury or body performing this critical function to ensure 

a full and honest review?

MSHA’s long-standing policy to conduct an internal review following each accident 

that results in three or more fatalities provides a full and honest assessment of 

MSHA’s performance as it relates to an accident—and, in many cases, has led to 

corrective actions to address issues identified by internal review teams. 

MSHA believes in the importance of conducting a thorough review of its own overall performance. MSHA’s internal review teams consist of highly qualified, professional MSHA personnel who are outside the district where the accident occurred 

and independent of the accident investigation team. Team members report directly 

to the Assistant Secretary for Mine Safety and Health. 

An internal review is a thorough examination and objective evaluation of MSHA’s 

enforcement practices at a mine that has experienced a major accident. It is one element of a management system designed to improve the Agency’s enforcement performance with the overall goal of preventing future accidents. 

The internal review team reviews existing MSHA policies and procedures, inspection records, and data in MSHA’s computer systems. The team also interviews 

Agency employees who perform inspection, investigation, and management functions. 

The review team prepares a detailed report documenting its findings and recommendations. MSHA makes internal review reports available to the public and 

posts the reports on its web site. MSHA believes that interested members of the 

public should have an opportunity to review the findings and recommendations in 

an internal review report and to hold the Agency accountable for correcting the deficiencies found. 

Numerous positive changes have resulted from internal reviews. Some examples 

include: better follow up on rock dust surveys; improved documentation of inspections; more appropriate decisions in Safety and Health Conferences following inspections; funding to update the 30-year old Impoundment Design Manual; increased 

management oversight at the district and national levels; and improved use of enforcement tools provided by the Mine Act. 

MSHA policy requires an internal review after each mining accident that results 

in three or more fatalities. For example, an internal review is underway into the 

Darby mine accident where five miners lost their lives. There may be other circumstances when the Assistant Secretary will direct that an internal review be conducted. An example of one of those internal reviews is the internal review conducted 

after the Martin County impoundment failure which did not cause a loss of life but 

did cause substantial environmental damage. The mine fire at the Aracoma Mine, 

in which two miners were killed, is also the subject of an internal review by the 

Agency.

15. Are decisions about mine safety and health being made by MSHA’s technical 

experts, or are non-expert appointees in other parts of the Department of Labor calling the shots?

MSHA conducts its business by and through its core component of dedicated mine 

safety and health professionals who inspect mines and enforce the law on a daily 

basis. In addition, they handle everything from day-to-day matters to emergency situations. In every instance, issues are addressed and decisions are made with the 

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health and safety of our Nation’s miners as the primary concern of these safety and 

health professionals. These individuals provide the key experience and decision 

making capability necessary to address mine safety and health matters.

16. Self rescuers only provide about one hour’s worth of oxygen, and MSHA only 

requires operators to provide one for each underground miner. Why hasn’t MSHA required more? Isn’t it true that it could often take more than an hour to evacuate a 

mine?

MSHA has issued an Emergency Temporary Standard (ETS) which has increased 

the stocks of SCSRs available and established safe cache locations which are well 

within reach of a single SCSR to address longer distances in the larger and deeper 

mines and mines that have obstacles which prevent direct egress. 

On March 9, 2006, MSHA’s ETS went into effect, requiring at least one additional 

SCSR per miner. MSHA inspectors are currently reviewing mine operator storage 

plans for caches of extra SCSRs including determining that the first SCSR will last 

to the cache point. We are doing this to ensure the appropriateness of the SCSR 

cache location but in addition we have an additional opportunity to monitor SCSR 

use. MSHA’s ETS takes into consideration that in some mines and in some circumstances, it may take more than one hour to exit the mine or to reach a safe 

breathing area, and thus requires caches of additional SCSRs in both required 

escapeways if it takes more than one hour to evacuate a mine. The preamble contains an extensive discussion of these issues. The full text is available at http:/ 

/www.msha.gov/KEGS/FEDREG/FINAL/ 2006finl/ 06-2255.pdf. 

MSHA is also implementing MINER Act requirements. For example, MSHA has 

issued a Program Policy Letter which provides guidance to mine operators to facilitate the development of their Emergency Response Plans. On August 30, 2006, 

MSHA published a Request for Information in the Federal Register in order to solicit information and develop further guidance for mine operators in assuring that 

the plans provide safe and reliable post-accident breathable air supplies for trapped 

miners. MSHA has also participated with stakeholders in information meetings 

about the new MINER Act held across the country.

17. Do you know how many mines currently meet the requirements for having at 

least two mine rescue teams within two hours of the mine?

All Coal Mines are in compliance. One hundred thirteen Metal Nonmetal mines 

have at least two mine rescue teams within two hours of their mine.

18. When the Bush Administration withdrew a Clinton-era proposal that sought 

to increase the number and availability of mine rescue teams, the Administration 

stated that it planned to evaluate non-regulatory alternatives to that proposal. at 

have you done to evaluate those non-regulatory alternatives? What have been the results of your evaluation thus far?

The number of mine rescue teams has declined over the years, as has the number 

of mines. MSHA looked at regulations that would increase the number of these 

teams and held a public meeting in March 2002 in Barbourville, Kentucky to gather 

current ideas and suggestions concerning mine rescue capabilities and preparedness. Both labor and industry stated that cost is the major factor considered in establishing a mine rescue team. Recommendations to MSHA focused on incentives, 

particularly reducing penalties for violations if a mine had a mine rescue team. Legally, MSHA could not adopt that approach. Therefore, MSHA withdrew the minerescue agenda item (no proposal was ever published) and issued two Program Information Bulletins that addressed mine rescue cost concerns related to training and 

technical assistance. The Administration continues to offer assistance for mine rescue team training and drilling. In addition, the Administration has revitalized the 

Mine Rescue Team Contests; the National Contest last fall drew the largest number 

of teams in recent years. MSHA is implementing requirements in the MINER Act 

related to mine rescue teams.

19. What is the state of your inspector workforce? In a September 2003 report, the 

GAO warned that 44 percent of MSHA’s inspectors would be eligible to retire within 

5 years. Are we facing a shortage of qualified mine inspectors?

STATUS OF COAL ENFORCEMENT PERSONNEL AS OF 6/30/06

2006

Underground Inspectors ........................................................................................................................................... 274

Surface Inspectors .................................................................................................................................................... 53

Specialists ................................................................................................................................................................ 168

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STATUS OF COAL ENFORCEMENT PERSONNEL AS OF 6/30/06—Continued

2006

Trainees .................................................................................................................................................................... 92

Total ............................................................................................................................................................ 587

No. MSHA is not not facing a shortage of qualified mine inspectors. It is certainly 

true that a significant number of federal mine inspectors are eligible to retire within 

less than five years, but our experience has been that MSHA’s employees do not exercise their retirement option as soon as they are eligible. However, MSHA has 

taken steps to anticipate coming retirements, by recruiting qualified candidates 

through aggressive on-going job fairs in each district and reducing the time required 

to hire inspector trainees. Still, while we have reduced the hiring time for inspectors 

to approximately 45 days, it takes 18 months to fully train an inspector. The rate 

of attrition and training time, along with an increase in the mining industry’s activity and the competition with the private sector for promising candidates remain 

challenges for MSHA. MSHA is currently moving promptly to recruit and train coal 

enforcement personnel, as called for in the FY 2006 Emergency Supplemental Appropriations Act for Defense, Global War on Terror, and Hurricane Recovery.

20. What impact has the loss since 2001 of 190 authorized coal enforcement personnel had on MSHA?

These changes have not had an adverse impact on enforcement. To the contrary, 

in both metal/nonmetal and coal, MSHA is conducting more inspections than five 

years ago, and has increased its mandated inspection completion rate since 2000. 

On the coal side, MSHA has improved its required regulatory inspection completion 

rate from 98.3% in 2000 to 99.6% in 2005. 

Since 2001, the coal mining sector has seen a 6% reduction in the number of 

mines. During this period, MSHA adjusted its internal structure to correspond to 

the workload decrease by consolidating administrative support operations, allowing 

resources to be dedicated to its core functions. The vast majority of the decrease in 

staffing levels since 2001 have occurred in the administrative and support components of the Agency. Increased automation and use of technology enabled MSHA to 

reduce the number of staff needed to effectively perform the functions. In 2005, we 

saw a moderate increase in the number of mines and miners as the industry 

stepped up production to meet the demand for this increasingly vital resource. 

MSHA once again looked at its structure and processes and identified areas for improvement that enabled it to attain the safest year in history.

21. When the Administration withdrew the Clinton-era proposal to improve the use 

of self-contained self-rescue devices, the Administration said it was withdrawing the 

item ‘‘in light of resource constraints and changing safety and health regulatory priorities.’’ What were those resource constraints? What were those changing safety and 

health regulatory priorities?

The issue noted in your question had been on the Agency’s regulatory agenda as 

an advance notice of proposed rulemaking (ANPRM)] for four years before this Administration took office without a rule being proposed. This Administration revised 

the regulatory agenda upon taking office to provide a roadmap for regulatory actions 

that would be realistically addressed and completed and that were in active status. 

Self-contained self-rescuers (SCSRs) are closed circuit breathing apparatuses that 

provide a source of oxygen and greatly increase a miner’s chance of surviving a mine 

emergency involving an irrespirable atmosphere. This agenda item would have addressed the inspection and service life of these breathing devices, as well as training 

requirements for their use and storage. We determined that additional testing and 

monitoring was a necessary predicate for rulemaking. Currently, NIOSH is working 

on a proposed rule to address reliability. MSHA is assisting NIOSH in the development of that rule. MSHA and NIOSH have a long-term protocol to take SCSRs out 

of service from mines (and replace them) in order to test the functionality of SCSRs 

at all stages of their shelf life. In addition, any report either agency receives of a 

defective or less than fully functional SCSR is fully investigated. 

MSHA’s other priorities over the succeeding years have included lowering the permissible exposure limit for asbestos exposure; developing a final rule for diesel particulate exposure; finalizing a rule for hazard communication; proposing rules on 

respirable coal mine dust and a continuing collaboration with NIOSH to develop a 

personal continuous dust monitoring system; publication of a final rule on independent laboratories to allow alternative testing and evaluation requirements to 

bring technological innovations to the U.S. mining market more quickly; a final rule 

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on methane monitors and roof bolting equipment; a final rule on belt entry ventilation; a final rule on approval fees for testing; an ANPRM on substance abuse; and 

a final rule on training for shaft and slope construction workers as well as a final 

rule on the use of low and medium power electric generators at underground coal 

mines. MSHA is moving very expeditiously to finalize the Emergency Temporary 

Standard (ETS) issued in the aftermath of the Sago and Aracoma Alma mine accidents. Provisions in the ETS will greatly improve mine operator emergency preparedness and a miner’s chances of safely evacuating an underground coal mine 

when a mine emergency occurs. In addition, MSHA is implementing MINER Act requirements designed to improve mine safety rescue and emergency response technology. The MINER Act requires that MSHA issue regulations addressing: (1) mine 

rescue teams at underground mines; (2) civil penalties at all mines and (3) seals at 

underground coal mines. MSHA expects to be able to fully meet this ambitious rulemaking agenda in FY 2007.

22. A February 27, 2006 article in USA Today stated that ‘‘federal inspectors routinely concluded that safety violations at the Sago Mine endangered only one person, 

findings that helped keep fines to a minimum before the disaster killed 12 miners 

in January.’’ We understand that, if a violation is deemed to endanger more than 

one person, the fine may go up dramatically.

a. Sago had six citations for blocking escapeways that miners use to flee a fire 

or explosion. Each citation said only one miner was endangered by the blocked 

escapeway. The mine paid $60 fines for each of two such violations. Why would only 

one miner be endangered by a blocked escapeway? 

b. On August 16, 2005, an inspector found ‘‘chemical smoke’’ being blown toward 

areas where two mining teams were working. A team typically has eight to ten miners. The citation said one miner was endangered. Why would only one miner out 

of a total of two mining teams be endangered by chemical smoke? 

c. Sago was cited for 22 violations from July 2004 to December 2005 for ‘‘accumulation of combustible materials’’—coal dust and coal chunks that can spread fires 

and explosions. All 22 violations said one miner was endangered. Why would only 

one miner out of an entire underground workforce be endangered by the accumulation of combustible materials each time? Across the board, is this a common practice? What does it accomplish other than deflating the fines that may be assessed 

for a safety or health violation? 

MSHA is currently conducting an Internal Review of all inspection and associated 

activities at Sago mine. The severity of the risk posed by the violation (number of 

persons affected) and negligence will be addressed by the review. To preserve the 

objectivity and independence of the Internal Review team, it would be inappropriate 

for MSHA to prematurely draw conclusions. 

Response From Bruce Watzman, Vice President Safety, Health, and Human 

Resources, National Mining Association, to Supplemental Questions 

NATIONAL MINING ASSOCIATION, 

CONNECTICUT AVE., NW, 

Washington, DC, March 29, 2006. 

Hon. CHARLIE NORWOOD, 

Chairman, Subcommittee on Workforce Protections, Committee on Education and the 

Workforce, 2181 Rayburn House Office Building, Washington, DC. 

DEAR MR. CHAIRMAN: Thank you for providing us the opportunity to appear before 

the Subcommittee earlier this month to share the views of the members of the National Mining Association on ‘‘Evaluating Health and Safety Regulations in the 

American Mining Industry.’’

Attached are responses to the questions I received following my appearance. 

We look forward to working with you and the members of the Subcommittee as 

you consider legislation to advance mine safety. 

Sincerely, 

BRUCE WATZMAN, 

Vice President Safety, Health, and Human Resources,

National Mining Association. 

1. Is the NMA prepared to support any of the legislation that has been introduced 

to-date in the U.S. House of Representatives of the U.S. Senate? 

Response: We support several of the concepts contained in legislation that has 

been introduced but have concerns with other components of the pending measures. 

As stated during my appearance before the Subcommittee on March 1, 2006, we 

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have developed the following set of guiding principles that we believe should be reflected in legislation: 

• Expediting development and introduction of ground penetrating communication 

and tracking technology; 

• Improving emergency notification; 

• Enhancing safety training and rescue capabilities; 

• Providing a liability shield and indemnification for mine rescue activities; 

• Ensuring that new requirements are accompanies by workable transitional 

timeframes; 

• Providing authority for mine operators to conduct mandatory substance abuse 

testing of all personnel at the mine; and 

• Providing tax incentives to help companies invest in equipment and training 

needed for enhanced mine safety and rescue capabilities.

2. You remember the efforts of this House about a decade ago to eliminate the Mine 

Safety and Health Administration (MSHA), to cut the number of mandatory inspections, and to otherwise weaken protections to this Nation’s mines. Did you organization support these efforts? Does your organization believe any strengthening of the 

law is required, for example to deal with scoff-laws who refuse to pay penalties after 

all adjudication is completed? 

Response: We do not support efforts to eliminate the Mine Safety and Health Administration, nor do we support a cut in the statutory requirements that each underground mine be inspected four times per year and each surface mine twice per 

year. We do believe however that the manner in which inspections are conducted 

needs to be revised to reflect industry operational changes that have taken place 

since the law was passed. We submit that providing the agency with the ability to 

focus its resources on those who persistently ignore citations and penalties would 

supply a more effective deterrent to those who chose to ignore the law.

3. It is widely accepted in Australia and other nations that a safe and healthful 

mine is a productive mine. Given this country’s increased demand for coal, isn’t it 

the obligation of this Congress to give MSHA more vigorous enforcement authority 

so it can ensure that each mine operator understands this simple but fundamental 

guiding principle? 

Response: The guiding principle that a productive mine is a safe and healthful 

mine is well-understood and followed in the United States. As the information we 

have furnished the Subcommittee demonstrates, as coal mine productivity improved 

accidents and injuries have declined. The Mine Act vests MSHA with significant enforcement powers, including the authority to close a portion of a mine or have removed from service equipment that presents an imminent danger hazard to miner’s 

safety and health. This authority, when correctly applied, has proven sufficient to 

improve safety performance at our nation’s mines.

4. What does your organization think about a user fee which would fund MSHA 

compliance assistance activities so that it would be able to provide you with such 

services while using the taxpayers’ money to fund enforcement? 

Response: We do not believe that a ‘‘user fee’’ is necessary or appropriate. Compliance assistance activities are, in truth, an integral part of an inspector’s work 

protocol. As such, it would extremely difficult and burdensome to require inspectors 

to allocate their time spent at the mines to differentiate between what one would 

deem to be ‘‘compliance assistance’’ activities as opposed to enforcement activities. 

Other agencies, such as the Occupational Safety and Health Administration and Environmental Protection Agency, which have established and administer compliance 

assistance programs do not, to our knowledge, charge user fees for those activities 

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Additional Materials Submitted by Dennis O’Dell, Administrator for 

Department on Occupational Health and Safety, UMW


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Text of the note that Mr. Hamner left in his lunch bucket for his wife and daughter. 

Mr. Hamner died in the Sago mine disaster.


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Prepared Statement of Charles E. Hawkins III, CAE, Executive Vice 

President and COO, National Stone, Sand, & Gravel Association 

Mr. Chairman, the National Stone Sand & Gravel Association (NSSGA) appreciates the opportunity to submit a statement for the record of this mine safety hearing. 

Based near the nation’s capital, NSSGA is the world’s largest mining association 

by product volume. Its member companies represent more than 90 percent of the 

crushed stone and 70 percent of the sand and gravel produced annually in the U.S. 

and approximately 115,000 working men and women in the aggregates industry. 

Sale of natural aggregates (crushed stone, sand and gravel) generates nearly $38 

billion annually for the U.S. economy. The estimated output of aggregates produced 

in the first half of 2005 was 1.3 billion metric tons, a four percent increase over the 

same period in 2004 (2.85 b MT). According to the U. S. Geological Survey, the significant increases in aggregates production were due to the increase in construction 

activity, which has risen every year for the past decade. Construction spending 

amounted to $617.9 billion during the first half of 2005, a nine percent increase over 

the same period in 2004. 

Aggregates are used in nearly all residential, commercial and industrial building 

construction and in most public works projects, such as roads, highways, bridges, 

railroad beds, dams, airports, water and sewage treatment plants and tunnels. 

While the American public pays little attention to these natural raw materials, they 

go into the manufacture of asphalt, concrete, glass, paper, paint, pharmaceuticals, 

cosmetics, chewing gum, household cleansers and many other consumer goods. 

The disasters in the Sago Mine and Aracoma Coal Alma No. 1 Mine are tragic 

and the loss of even one life, let alone 14 lives, is devastating. Nevertheless, the 

safety record of the mining industry, and the aggregates industry in particular, has 

improved due to a heightened level of effort invested by the industry to sustain an 

improved performance. The improvement in the aggregates industry safety record 

is attributable to a combination of more effective safety and health programs developed and implemented by the industry over the past decade. 

The first priority for the aggregates industry is and will continue to be the safety 

and health of its miners. The industry recognizes that its employees are its most 

valuable asset, an asset that must be protected for the well being of the industry 

now and in the future. As the workforce ages, it has become increasingly difficult 

to recruit new miners to the industry. Maintaining an excellent safety record 

through the implementation of effective safety and health programs is considered 

a critical element for attracting and keeping a highly skilled workforce. 

Members of the National Stone, Sand & Gravel Association have developed and 

agreed to a set of guiding principles to assist member companies in their efforts to 

understand the importance of safety to their individual organizations as well as to 

the industry as a whole. In addition, a safety pledge was developed in 2002 incorporating the safety guiding principles. More than 90 percent of the operations of 

NSSGA member companies are now covered by this pledge, signifying the importance of safety and a commitment toward ensuring the safety and health of all their 

employees. 

It is important to recognize that underground aggregates operations present a 

much lower risk than other underground mining sectors because of the nature of 

the mined product and the mining methods used to extract the material. Specifically, aggregates products are non-combustible, non-flammable minerals. As a result, the probability for fire is very low. Since there are no flammable gases present 

and the material does not act as a fuel, specialized equipment is not needed in aggregates underground mines. The mining methods used, called ‘‘room and pillar,’’ 

create large open spaces adequately supported by the material left in place. This 

technique minimizes the need for extra support for the mine roofing. These mines 

are generally only a few hundred feet deep and have entrances suitable for large 

material handling equipment like front end loaders and haul trucks. These large entrances also provide access for emergency equipment minimizing the need for specialized mine rescue teams and equipment. Natural ventilation is often adequate for 

providing adequate air to miners underground. 

Recent news articles have ascribed some of the responsibility for the Sago incident 

to the cooperative alliances MSHA has signed with the industries it regulates, implying an inappropriately close relationship. We would argue the opposite. The 

NSSGA and MSHA formalized the first such alliance in 2002, setting forth a cooperative agreement to develop programs and tools for the improvement of safety and 

health in the aggregates industry. The resulting reduced incidence rates speak for 

themselves. 

73

It should also be noted that MSHA has similar alliances with labor organizations, 

including the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and the International Union of Operating Engineers. Important alliances also exist with the National Safety Council and the American Society 

of Safety Engineers. Through these alliances, MSHA has been able to enhance its 

mission of protecting worker safety and health 

Another collaborative effort resulted in the MSHA Part 46 ‘‘Training and Retraining of Miners’’ regulation in 2000. This excellent regulation ensures every miner 

knows and understands how to perform their job (all miners know and understand 

how to perform their jobs OR every miner knows and understands how to perform 

his or her job) safely by covering the important safety and health information prior 

to starting work and annually thereafter. This regulation was developed collaboratively, with input from both labor and industry groups, guaranteeing support of 

the rule by all involved stakeholders and assuring their commitment to the ultimate 

goal of injury reduction. The Coalition for Effective Miner Training included many 

industry groups working in a joint industry/labor arrangement in conjunction with 

MSHA to develop an effective standard for the aggregates industry. The Part 46 

regulation resulted from this effort. 

In another example, the NSSGA and MSHA developed a cooperative workplacebased sampling training program of noise and dust monitoring workshops. A partnership agreement was signed and the training workshop program launched on December 1, 1997. These workshops have been given to industry representatives using 

training specialists from the Mine Safety Academy every year since 1997. These 

workshops have won two awards from Innovations in American Government for this 

joint venture aimed ay reducing hearing loss and silicosis through a program of recognition, evaluation and control of workplace hazards. 

The NSSGA/MSHA alliance was further enhanced by an ad hoc coalition consisting of the U.S. aggregates industry (NSSGA and MSHA) and the quarrying industry (Health & Safety Executive and the Quarry Products Association) in the 

England. This informal alliance was developed to share best practices between the 

countries in a similar industry. 

Based on the sharing of information about successful programs in the England, 

the NSSGA/MSHA Alliance has moved forward with joint efforts to implement programs that will further improve the safety and health of U.S. aggregates miners. 

The alliance first assembled a Data Mining Task Force to review the incident data 

(not fatalities) with the hope of elucidating specific areas where efforts could be targeted to reduce injuries. It is this focus on incidents, rather than the focus on fatalities, that offers the best chance of improving the safety performance and at the 

same time reducing fatalities. 

Simultaneously, the alliance began working on a model safety and health program 

to take the best of industry and develop a model that could be used by both small 

and large aggregate producers to develop a safety management system. This resulted in the publication in December 2005 of the ‘‘Core Principles of a Safety Program’’ by the Alliance. It is available free on the MSHA and NSSGA websites. 

At present, the Alliance is working on promoting safety and health through the 

publication of ‘‘rip & share’’ safety tools in the bimonthly association magazine and 

articles on timely safety topics for the industry to use in improving their safety programs. MSHA and NSSGA member company representatives jointly develop these 

tools. The cooperative relationship has made great strides toward improving the 

safety of the aggregates industry. 

You can see this clearly using the data required to be submitted by mine operators on injuries/illnesses and manhours. The attached chart ‘‘Comparison of Aggregate Industry Workhours vs. Incident Rates’’ shows that even with an increasing 

number of hours worked at aggregates producers’ sites there has been a significant 

reduction in the total incidence rate in the industry. The second chart ‘‘Aggregate 

Industry Incident Rates 1989—2004’’ shows this data broken down by aggregates 

industry sector. More progress has been made since 2002 through the cooperative 

efforts of the NSSGA/MSHA Alliance. 

In no way does the NSSGA/MSHA Alliance interfere with the compliance program 

of the agency. MSHA has an important role in ensuring that safety at aggregates 

mines and quarries maintain standards that protect employees. The MSHA enforcement program operates independently of any of the cooperative industry alliances. 

The Mine Safety Act, unlike any other safety agency, requires complete inspections 

of every mine property 2 or 4 times per year depending on whether it is surface 

or underground, respectively. 

The mining industry is more heavily regulated and inspected than general industry covered under the Occupational Safety and Health Administration regulations. 

It is important that caution be exercised before rushing to impose more regulations 

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on the mining sector. Careful study of the programs in place must be made and effective enforcement ensured. 

NSSGA believes that the cooperative relationship the aggregates industry has developed with MSHA has led to increased safety for aggregate industry employees. 

We believe that these relationships rather than being discouraged should be encouraged. They are especially helpful to the small- and medium-sized companies that are 

unable to afford a staff safety professional by providing the mechanisms necessary 

for continuous improvement to the safety and health of aggregate workers. 

NSSGA appreciates the opportunity to provide comments on this very important 

issue.


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U.S. Department of Labor

Mine Safety and Health Administration

NSSGA/MSHA Alliance 

Core Principles of a Model Safety Program

The goal of the following outline is to provide the fundamental elements of a safety 

program that will help create an ideal culture in order to prevent accidents and 

injuries.

9Front Line Management Leadership and Commitment

o Supported by Demonstrated Senior Management & CEO/Owner 

Commitment

o Safety Director Role 

9Training and Development 

9Formal Auditing of All Employee Work Practices

9Employee Involvement & Participation 

o Job Safety Analysis 

o Safety Committees 

9Incident Investigation

9Safety Communications 

o Alerts

o Newsletters

9Regulatory Compliance Programs 

9Operational Safety Best Practices

9Recognition Program 

9Accountability System

9Substance Abuse Prevention Program 

The following pages will outline what each of these principles means and examples 

of how they can be used to obtain better safety performance at your company. 


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HEALTH AND SAFETY POLICY 

Safety will be given primary importance in planning and operating all company

activities in order to protect employees against occupational injuries and illnesses, and 

in order to protect the company against unnecessary financial burden and reduce

efficiency. Accordingly, it is company policy to place safety and health on an equal basis

with Quality, Quantity, and Cost of providing service. 

All management and supervisory personnel are responsible for providing and 

maintaining a safe and healthy work environment and for the safe work conduct of all 

persons reporting or assigned to them. 

All employees are responsible for their own safety, that of their fellow employees and 

the public. They must perform their work in a professional, safe manner and adhere to 

working practices and rules established for their safety. 

 This program has been prepared for all employees and is intended to be a reference to 

job safety in all company operations. It is intended to prevent accidents, which could 

result in property damage or injury to you, your fellow employees, the public, or our 

customers. Very simply, this program is a tool to assist and protect you in your work. 

Our statement and general policy is: 

x To provide adequate control of the 

health and safety risk arising from 

our work activities 

x To consult with our employees on 

matters affecting their health and 

safety

x To provide and maintain safe work 

areas including plants and mobile 

equipment

x To insure safe handling and use of 

hazardous materials 

x To provide information, instruction, 

and supervision for employees 

x To ensure that all employees are 

competent to do their task, and give

them adequate training 

x To prevent accidents and cases of 

work related ill health 

x To maintain safe and healthy 

working conditions; and

x To review and revise this policy as 

necessary at regular intervals

Company Official Title Date 

__________________________ ____________

Miner Date


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9Front Line Management Leadership and Commitment 

o Supported by Demonstrated Senior Management & CEO/Owner 

Commitment

o Safety Director Role 

Management Leadership is the nucleus for creating a total safety culture. This top-down 

approach to safety includes being proactive through personal involvement, strategic 

planning, and excellent management practices. It is a mistake to undervalue the role a 

manager, especially an owner or CEO can play in setting the tone regarding safety & 

health.

A clear commitment to safety and health must be established by the most senior official 

of the company and then communicated to all managers and employees. Sometimes 

breakdowns in communication or expectations occur within the middle-manager 

structure of an organization, and as a result safety performance suffers. 

In addition, executives must allow employees to be actively involved in the safety

process in order to develop empowerment or ownership of the program. Management 

commitment in combination with employee ownership can lead to an increase in 

employee morale leading to reductions in both absenteeism and worker’s compensation 

costs, thereby increasing the safety performance, which ultimately can lead to an 

increase in production. An employee will respond to the expectations set by his/her 

manager, if safety is not discussed and reviewed routinely, it could be assumed that it is

not important.

The role of a safety director is an important one and should be considered even for a small 

operation. The safety director is really a resource to both management and to the 

production workforce. That person needs to ensure that employees have the training, 

tools, and support they need to perform their jobs safely. It is easy to get caught up in 

the demands of production, a safety director needs to be able to remind all employees 

that nothing is more important than their safety & health. 

What can a manager do to help convince their employees that they are committed to 

safety?

Visible Involvement & Commitment

Site visits 

Interaction with employees (feedback and follow-up) 

Follow through with policy (disciplinary issues) 

Safety concerns integrated into overall strategic planning 

Clear goals and objectives set and communicated 

Safety managed in the same manner as production and quality 

Clarify roles and responsibilities and establish expectations 

Clearly assigned safety responsibilities 


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Safety Director reports to President/Owner 

Establish accountability 

Adequate authority given to carry out responsibilities 

Set a good example by following all safety & health rules, including use of the 

proper PPE

9Training and Development 

Training is a mechanism used to develop a worker's individual skills and competencies

in company policy, regulations, and safe work practices. Safety training is vital in order 

to have confidence that your employees know and understand how to perform their 

jobs without putting themselves into hazardous situations or environments.

Not all hazards in our industry can be eliminated, however through training, we can 

educate our employees to identify potential hazards through effective risk assessment, 

leading to avoidance and mitigation.

MSHA’s §46 regulation is a comprehensive guideline for employee training that must 

be followed. 

Who should receive training? 

Executive Management, Operation Managers and Supervisors 

Craft Employees 

New Miner, with experience and without 

Independent Contractors, Subcontractors, and Vendors

9Formal Auditing of All Employee Work Practices

A Company must review on at least an annual basis the effectiveness of its safety 

program. An annual review will help clarify expectations and make managers and 

employees accountable for their performance. Equally important are the monthly and 

quarterly reviews of accidents, trends and observations.

Self-Evaluation Suggestions

1. Record keeping requirements (e.g., MSHA § 50) 

2. Industry-best Benchmarks

3. Work-site analysis – safety inspections/mock MSHA inspection 

4. Worker Observation

5. Statistical Measurements (trending, incident rates, claims cost, etc.) 


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9Employee Involvement & Participation 

o Job Safety Analysis/Job Task Analysis 

o Safety Committees 

The people most exposed to the hazards that exist in our industry may have the 

solutions to eliminate or mitigate them. Doesn’t it make sense to get them involved? Job

Safety Analysis and Safety Committees are two great ways to do just that. There is 

tremendous value in allowing your employees to become part of the solution to a safety 

problem. They will feel part of the process, they will own it, and as a result, they will 

look for other opportunities to get involved. 

A Job Safety Analysis (JSA) or Job Task Analysis (JTA) essentially is breaking down a job or 

task to it’s most fundamental components, identifying all potential hazards along the 

way and devising a procedure to ensure safe completion of the job. All miners must 

perform a risk analysis of all job tasks before they begin work on a task each and every 

time they perform a task. If they are uncertain about a condition or work practice they 

should consult with the manager. MSHA has provided a number of examples on their 

website (www.MSHA.gov) and even outlines how to perform a JTA. (Attachment 1) .

Safety Committees are another effective way to identify hazards and unsafe work 

practices, and correct them before they result in an accident or injury. A safety

committee allows employees to get involved in creating solutions and taking

ownership. Often a safety director may facilitate these meetings and having the site 

manager or company CEO/owner present really demonstrates the commitment to a 

safe work place.

9Incident Investigation

Following an incident, the most important thing that can be done is to perform an 

investigation so that the root causes can be identified in order to prevent similar 

incidents in the future. An incident could be as simple as a “Near Miss” or as tragic as a 

fatality. The more near misses and minor incidents that can be fully investigated, the 

better chance you have to avoid a more serious accident or fatality. (Attachment 2).

As part of a thorough investigation, the following should be asked or explored: 

Who was involved? 

What happened? 

Witness statements 

What job was being performed? 

Tools/equipment being used 

Photos/video

Solutions/prevention

In severe incidents, the scene should be secured so that nothing is disturbed


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9Safety Communications 

o Alerts

o Newsletters

Safety Communications, including Alerts or Newsletters, are a great way to get the 

message out to your employees. These items can be included with the employee’s 

paycheck so that they are more likely to be read. Safety alerts and newsletter are also 

great vehicles to recognize employees or operations for their good work, be it safety 

related or something else. The better informed your workforce is, the better prepared 

they will be to complete the job safely! (Attachment(s) 2 & 3).

9Regulatory Compliance Programs 

Federal Mine Safety & Health Act of 1977,

Public Law 91-173, 

as amended by Public Law 95-164* 

Congress declares that--

(a) 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; 

(b) deaths and serious injuries from unsafe and unhealthful conditions and practices in 

the coal or other mines cause grief and suffering to the miners and to their families; 

(c) there is an urgent need to provide more effective means and measures for 

improving the working conditions and practices in the Nation's coal or other mines 

in order to prevent death and serious physical harm, and in order to prevent 

occupational diseases originating in such mines; 

(d) the existence of unsafe and unhealthful conditions and practices in the Nation's coal 

or other mines is a serious impediment to the future growth of the coal or other 

mining industry and cannot be tolerated; 

(e) the operators of such mines with the assistance of the miners have the primary 

responsibility to prevent the existence of such conditions and practices in such 

mines;

Management is responsible for the overall health and safety of our employees. 

However, all employees are responsible to: 

x Co-operate with supervisors and management on health and safety issues 

x Not interfere with or deactivate anything provided to safeguard their health and 

safety

x Take responsible care of their own health and safety 

x Take responsibility for looking out for coworkers, safe work practices, and 

x Report all health and safety concerns to an appropriate manager


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Legal Identity- Scope 

30 CFR Part 41.10

Section 109(d) of the Federal Mine Safety and Health Act of 1977 (Pub. L. 91-173, as 

amended by Pub. L. 95-164), requires each operator of a coal or other mine to file with 

the Secretary of Labor the name and address of such mine, the name and address of the 

person who controls or operates the mine, and any revisions in such names and 

addresses.

Quarterly Employment Reports 

Preparation and submission of MSHA Form 7000-2--Quarterly Employment and Coal 

Production Report. 

30 CFR Part 50.30

(a) Each operator of a mine in which an individual worked during any day of a 

calendar quarter shall complete a MSHA Form 7000-2 in accordance with the 

instructions and criteria in §50.30-1 and submit the original to the Denver Safety and 

Health Technology Center, P.O. Box 25367, Denver Federal Center, Denver, Colo. 

80225, within 15 days after the end of each calendar quarter. These forms may be 

obtained from MSHA Metal and Nonmetal Mine Safety and Health District Offices 

and from MSHA Coal Mine Health and Safety Subdistrict Offices. Each operator 

shall retain an operator's copy at the mine office nearest the mine for 5 years after 

the submission date. 

Electricity - Testing grounding systems. 

30 CFR Part 56.12028

Continuity and resistance of grounding systems shall be tested immediately after 

installation, repair, and modification; and annually thereafter. A record of the 

resistance measured during the most recent tests shall be made available on a request 

by the Secretary or his duly authorized representative. 

Firefighting Equipment - Inspection.

30 CFR Part 56.4201

(a) Firefighting equipment shall be inspected according to the following schedules: 

(1) Fire extinguishers shall be inspected visually at least once a month to determine 

that they are fully charged and operable. 

(2) At least once every twelve months, maintenance checks shall be made of 

mechanical parts, the amount and condition of extinguishing agent and 

expellant, and the condition of the hose, nozzle, and vessel to determine that the 

fire extinguishers will operate effectively. 


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(3) Fire extinguishers shall be hydrostatically tested according to Table C-1 or a 

schedule based on the manufacturer's specifications to determine the integrity of 

extinguishing agent vessels.

(4) Water pipes, valves, outlets, hydrants, and hoses that are part of the mine's 

firefighting system shall be visually inspected at least once every three months 

for damage or deterioration and use-tested at least once every twelve months to 

determine that they remain functional. 

(5) Fire suppression systems shall be inspected at least once every twelve months. 

An inspection schedule based on the manufacturer's specifications or the 

equivalent shall be established for individual components of a system and 

followed to determine that the system remains functional. Surface fire 

suppression systems are exempt from these inspection requirements if the 

systems are used solely for the protection of property and no persons would be 

affected by a fire. 

(b) At the completion of each inspection or test required by this standard, the person 

making the inspection or test shall certify that the inspection or test has been made 

and the date on which it was made. Certifications of hydrostatic testing shall be

retained until the fire extinguisher is retested or permanently removed from service.

Other certifications shall be retained for one year. 

Table C-1 Hydrostatic Test Intervals for Fire Extinguishers

Extinguisher type 

Test

interval

(years)

Soda Acid 5

Cartridge-Operated Water and/or Antifreeze 5

Stored-Pressure Water and/or Antifreeze 5

Wetting Agent 5

Foam 5

AFFF (Aqueous Film Forming Foam) 5

Loaded Stream 5

Dry-Chemical with Stainless Steel Shells 5

Carbon Dioxide 5

Dry-Chemical, Stored Pressure, with Mild 

 Steel Shells, Brazed Brass Shells, 

 Or Aluminum Shells 12

Dry-Chemical, Cartridge or Cylinder 

 Operated, with Mild Steel Shells 12

Bromotrifluoromethane Halon 1301 12

Bromochlorodifluoromethane Halon 1211 12

Dry-Powder, Cartridge or Cylinder-Operated, 

 with Mild Steel Shells1 12


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1Except for stainless steel and steel used for compressed gas 

 cylinders, all other steel shells are defined as "mild steel" shells. 

Independent contractor register 

30 CFR Part 45.4

(a) Each independent contractor shall provide the production-operator in writing the 

following information: 

(1) The independent contractor's trade name, business address and business 

telephone number; 

(2) A description of the nature of the work to be performed by the independent 

contractor and where at the mine the work is to be performed; 

(3) The independent contractor's MSHA identification number, if any; and 

(4) The independent contractor's address of record for service of citations, or other 

documents involving the independent contractor.

(b) Each production-operator shall maintain in writing at the mine the information 

required by paragraph (a) of this section for each independent contractor at the mine.

The production-operator shall make this information available to any authorized 

representative of the Secretary upon request. 

First Aid

30 CFR Part 56.18010

An individual capable of providing first aid shall be available on all shifts. The 

individual shall be currently trained and have the skills to perform patient assessment

and artificial respiration; control bleeding; and treat shock, wounds, burns, and 

musculoskeletal injuries. First aid training shall be made available to all interested

miners.

Hazardous Communications (HazCom)

30 CFR Part 47

xManagement will inventory and record hazardous materials 

xManagement will ensure that a written program is kept up-to-date 

xManagement will secure MSDS for all materials listed and make them available to 

all miners at locations that are assessable on any working shift 

xManagement will provide and insure all hazardous materials containers are labeled 

for identification 

xManagement will ensure all miners and contractors receive training with regards to 

the hazardous materials they may be exposed to while on mine property 


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xManagement will make available a copy of an MSDS sheet to miners and/or 

contractors

Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, 

Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines 

30 CFR Part 46 

Management will ensure that quality training is provided that will comply with the Part

46 Training requirements for all miners, supervisors, and contractors who perform 

work activities on mine property. (See Part 46 Training Rule for details) 

Personal Protective Requirements 

30 CFR Parts 56.15001 to 56.15020 

x Management will provide all personal protective equipment as indicated by Yes 

and Employees will provide the items indicated by No 

x Employees are responsible for wearing and using personal protective equipment at 

all times when required 

Protective Gear Required or

recommended

For Whom When Supplied by 

Company

Safety Shoes Required All Workers All Times Yes No

Safety Glasses Required All Workers All Times 

Hard Hat Required All Workers All Times 

Snug-fitting

clothing

Required All Workers All Times 

Protective

Gloves

Required All Workers When needed 

Electrician’s

gloves

Required All Workers When

handling

electrical

cables

Hearing

Protection

Required All Workers When noise

levels exceed 

85 dBA 

Respirators Required All Workers When dust, 

gas, or fumes 

exceed

allowable

limits


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Notification, Investigation, Preservation of Evidence - Immediate notification

30 CFR § 50.10

x Employees are required to report all accidents or illness to management as soon as 

possible after the occurrence. 

x Management will contact MSHA of accidents requiring immediate notification. (See 

50.10 this page) 

x Management will investigate all accidents and complete accident reports required 

by this policy and Part 50, CFR. 

x Management with the assistance of the employees will, after review of the findings, 

initiate policies and procedures to prevent recurrence. 

Emergency Procedures 

30 CFR Part 56 

x Management is responsible for providing and maintaining fire protection equipment

x Employees are responsible for checking fire protection in their work areas and 

equipment and reporting to management when corrective actions are needed. 

x The emergency phone number to call for fires is 911. 

Safety and Health Audit 

Please see the attached safety and health audit for aggregate operators, which is focused 

on the twenty most cited MSHA standards. These standards account for approximately 

84% of the citations issued at aggregate mining operations. (Attachment 7)

9Operational Safety Best Practices

Many times your employees may have developed a safer or more efficient way to do 

their job, while at the same time other companies or operations struggle to find a better 

way. Many larger companies routinely encourage their operations to share Best

Practices as a way of finding the safest and best way to perform a task and to recognize 

those responsible for thinking outside the box. We are all under the same pressures to 

produce more, in a shorter time, and at a lower cost – best practices sometimes allow us 

to meet these pressures SAFELY. (Attachment 5)

A recent publication identified the following six best safety and health management 

practices:

Operational integration – safety is integrated into all facility operations and 

processes.

Motivational programs – programs are in place to encourage employees to 

recommend safety improvements and implement them. Companies employ 


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various types of recognition and rewards in such programs, ranging from 

management commendation to financial rewards.

Behavioral observation/feedback – a specific program is in place for employees 

to provide constructive/supportive feedback to co-workers on their safety 

behavior and opportunities for improvement. 

Safety committee – an effective safety committee with broad-based participation 

has been established and meets regularly to discuss goals/performance/progress

on initiatives.

Case management – sites work closely with medical professionals to evaluate 

occupational injuries and illnesses, to ensure that prompt medical treatment is 

provided, and to coordinate efforts to return recovering employees to their own

jobs or alternative assignments as soon as practicable. 

Safety survey – periodic employee surveys or focus group safety discussions are 

conducted to assess opportunities for improvement and corrective/preventive 

action to address needs. 

Driving Toward “0”: Best Practices in Corporate Safety and Health

The Conference Board, 2003 

9Recognition Program 

Recognition programs should be considered when building a safety program and culture.

People like to be recognized for doing things the right way or better than expected, and 

sometimes either one on one or public recognition means more to an employee than a 

financial reward.

There are two schools of thought regarding incentives or rewards for working safely.

One side might argue that employees should not be paid extra or rewarded for 

performing their job safely, after all that is what they are expected to do. The other 

approach is that sometimes an incentive might be needed to get employees more 

focused on safety or to raise awareness. 

Which application is best? It depends on your culture and your corporate philosophy, 

but the value of recognition should not be undervalued, and sometimes it is as easy as 

saying “thank you”. 

Not everyone is motivated in the same way; constant criticism or a negative approach

may wear thin after a while. Positive reinforcement and coaching can be better


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alternatives and should be tried first, especially with new and inexperienced 

employees.

9Accountability System

Accountability is a key component in building a safety program, and part of setting clear 

expectations regarding safety & health, includes consequences for not following the 

rules. Safety rules, policies, and procedures must be clearly communicated to all 

employees and expectations must be set for each level of management, as well as the 

production employees. 

When a rule is ignored or violated, it must be addressed in a serious fashion, it cannot 

be ignored. If ignored, it sends the message to the employee that it’s ok to violate rules 

as long as there was not an accident or injury. It is too late to discipline following an 

incident. This is precisely the reason why it is important not only to discipline, but also 

to reinforce positive behavior and safe acts. Employees must understand and believe 

that accidents and injuries are unacceptable, and the old cliché of “xxxx happens” does 

not have a place within your culture. 

When issuing discipline, often a progressive program is best: 

Verbal warning 

Written warning 

Time off without pay 

Termination

If the violation is serious enough, you may want to consider termination immediately.

Again, many factors play into discipline, including your culture and philosophy, union 

issues, etc.

9Substance Abuse Prevention Program 

A healthy workforce is a safe one; employees under the influence of drugs or alcohol 

are not safe and could injure themselves or others around them. Substance Abuse testing

should be considered; most corporate programs include the following: 

Pre-employment

Random

Post Accident

Reasonable Suspicion 

Some states do not allow random testing, although most experts agree, that random 

testing is the most effective means of detecting problems.


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So what happens when an employee tests positive for drugs and/or alcohol? There are 

two options, immediate dismissal or second chance based on mandatory counseling 

and future testing. Most companies that have substance abuse testing programs do not 

allow anything more than a second chance. If you decide that a second chance

opportunity will be offered for employees, then an employee assistance program (EAP) 

should be considered. (Attachment 6)

EAP’s usually offer not only counseling for substance abuse, but many times, help 

employees deal with other issues that could preoccupy a person to the point that they 

are not able to concentrate on their jobs, for instance: marital problems or issues with a 

child or parent. 

In our industry, a mental lapse can be deadly, and again, a healthy employee is a safe 

employee – mind and body. 


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uam.eps
90

Prepared Statement of Mike Neason, Administrator, Mining Practice 

Specialty of the American Society of Safety Engineers 

My name is Mike Neason, and I am a fifth generation miner and a Certified Mine 

Safety Professional. I manage safety and health for the mining operations of Hanson 

Aggregates in Kentucky and surrounding states—both surface and underground 

mining. I come before you today in my role as Administrator of the Mining Practice 

Specialty of the American Society of Safety Engineers (ASSE). ASSE represents 

more than 30,000 safety, health and environmental (SH+E) professionals dedicated 

to seeing that every worker has the best possible opportunity to go home healthy 

and safe from their jobs each day. The Society is the largest professional safety organization and, founded in 1911, has been in existence the longest. 


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ASSE’s Mining Practice Specialty—one of thirteen ASSE practice specialties covering the spectrum of safety and health professional interests—currently has more 

than 350 members. My colleague members are men and women on the front lines 

of managing mine safety and health in coal and metal/nonmetal mines, surface and 

underground, or providing training, auditing and consultation services to the mining 

industry. 

We commend the Committee for looking critically at mine safety and health issues 

today, both in terms of what can be done to prevent another disaster such as the 

Sago mine catastrophe two months ago and also to discern what can be done to improve the efficiency and effectiveness of the Mine Safety and Health Administration 

(MSHA). ASSE shares your concern. We have established a task force to review 

mining emergency preparedness and communications in response to the recent tragedies. Through ASSE’s alliance with MSHA as well as our partnership with the National Institute of Occupational Safety and Health (NIOSH), we intend to help encourage an effective, proactive federal response to the concern many share over this 

nation’s commitment to mine safety and health. 

For today’s purposes, ASSE reviewed the two pending Mine Act reform measures, 

S. 2231, introduced by Senator Robert Byrd on February 1, 2006, and S. 2308, introduced by Senator Arlen Specter on February 16, 2006. Our comments here are initial reactions largely to the ideas contained in these bills. Following the work of 

ASSE’s task force examining these same issues, ASSE will be able to provide the 

Committee with a more elaborate response, which we look forward to doing. 

As a preliminary matter, it is important to recognize that, while the loss of life 

in the Sago disaster was unacceptable to mine safety and health professionals dedicated to doing everything we can to make mines safe and healthy places to work, 

it is far from indicative of the overall state of mine safety and health in the United 

States. To the contrary, mine safety has drastically improved over recent decades, 

and last year marked the lowest number of fatalities in U.S. history, capping a general trend of declining fatalities, injuries and illnesses. The successes should not be 

overlooked based on this failure. 

These strides were achieved, first, through tough and effective enforcement of this 

nation’s mining laws. It should not be overlooked, however, that efforts of government, state and private sector initiatives, often working in cooperation, also played 

a necessary role. Because of the commitment from each of these sectors, technology 

is getting better and better at engineering hazards out of mining and removing miners from exposure to hazards. We are now seeing greater computerization of mining 

methods having a substantial impact on our ability to manage the safety and health 

risks within mines, with a substantial promise that even better protections can be 

achieved. 

Duplicating Responsibility for Technology Advancement 

Many of the technological advances we already have in place were developed 

through the efforts of dedicated researchers at the National Institute for Occupational Safety and Health (NIOSH), which houses the former Bureau of Mines. As 

we indicated in a recent letter to you and Senator Kennedy, ASSE was extremely 

disappointed that a NIOSH representative was not permitted by his agency—the 

Department of Health and Human Services—to participate in last month’s roundtable on mine safety technology. NIOSH’s Mine Program is already positioned to 

conduct effective intramural research, and, by expanding its already proactive outreach to academia and private sector resources, to support extramural research and 

develop pilot programs that can test the viability of new mine safety technology in 

real-world situations. 

With all due respect to Senator Byrd and his fully understandable effort to examine new approaches for protecting miners—especially since the unacceptable price 

of Sago tragedy is being paid by citizens of his own state—ASSE cannot support legislative proposals, as included in S. 2231, that would create an Office of Technology 

within MSHA or in any other way diffuse this nation’s already limited mining safety 

and health research. Any duplication of NIOSH’s technology transfer and research 

infrastructure would only spread resources thin and most likely add a needless layer 

of bureaucracy that would delay the development and implementation of new measures to protect miners. 

Significantly, Congress originally tasked NIOSH with performing the research to 

inform MSHA regulatory decisions in the 1977 Mine Act, in which Section 501 directs NIOSH to ‘‘conduct such studies, research, experiments, and demonstrations’’ 

necessary, among other things 

(T)o improve working conditions and practices in coal or other mines * * * to prevent accidents and occupational diseases originating in the coal or other mining industry * * * to develop new or improved methods of recovering persons in coal or 

92

other mines after an accident * * * and to develop new or improved means and 

methods of communication from the surface to the underground area of a coal or 

other mine. 

The same legislation created MSHA, and the rationale for assigning these responsibilities to NIOSH rather than MSHA was to keep research independent and distinct from regulatory and enforcement influences. The reason to for keeping these 

functions separate still exists. ASSE could not support creation of a duplicative effort within MSHA. MSHA should have every resource necessary to focus on enforcement and reaching out, not only to NIOSH, but the private sector as well to help 

ensure that its methods and the expertise of its staff keeps current with technological advances and incorporates ongoing change into its culture. A new commitment to outreach, not a new department, is not needed for that to occur. 

If any change is needed, it is the current Administration’s commitment to NIOSH. 

For Fiscal Year 2007, $5 million has been proposed to be taken from NIOSH, this 

after many of its essential capabilities were taken away in the name of Centers for 

Disease Control and Prevention reorganization. We urge the Senate to reject this 

reduction in commitment and increase NIOSH’s resources so that NIOSH can better 

fulfill its mandate to conduct mine safety and health research, develop technology 

and provide training support materials. 

Mine Safety Technology 

With respect to mine safety technology, the Sago disaster has pointed out that 

gaps exist in protections for underground miners—both coal and metal/nonmetal. Although many mines, such as the ones that I oversee, go beyond compliance with 

MSHA’s mandatory standards, others unfortunately adhere to the bare minimum 

standards, with the result that lives may be lost due to inadequate respiratory protection and technologically obsolete communication systems. 

As indicated at the February 15 Subcommittee on Employment and Workplace 

Safety hearing, the market makes readily available products that function in the 

same manner as the one-hour Self-Contained Self-Rescuers (SCSRs) but provide expanded protection from toxic gases that can be created in mine fires or present in 

gassy mines even without an accident. Promising technologies also exist for locating 

or communicating with miners underground, such as the text messaging technology 

currently being tested in approximately 140 mines throughout the world. We agree 

that redundant communications systems that can demonstrate effectiveness make 

a great deal of sense. 

However, when considering what is and may not be feasible, focus must be placed 

on post-incident functionality when electrical systems may not be working. We urge 

both NIOSH and MSHA to investigate this issue thoroughly and to explore the utility of technologies developed by the U.S. Department of Defense, the National Aeronautics and Space Agency, and the fire service industries post-911 for communication with firefighters in emergencies. Although we understand that there may be 

real promise in current communication advances, the transfer of such technology to 

the underground mining industry is very much in question. Neither Congress nor 

MSHA should rush to force solutions by assuming the viability of these products before in-mine tests and research can be conducted and such products become commercially available. At this point in time, there simply is no one-size-fits-all solution 

to underground mine communication, respiratory protection, or mine rescue, as 

much as we all would wish it. 

Although, as Senator Specter suggests, some mines might easily adopt oxygen stations that provide a four-day supply of clean air for all mines in each working area 

of a mine, this might not be readily accomplished in some smaller mines such as 

those in the anthracite sector, or those with low passageways. There may, in the 

alternative, be other ways of achieving the goal more feasibly in such mines. Until 

the information is available, such regulations should not be congressionally mandated. While the Mine Act has historically been considered a ‘‘technology forcing’’ 

statute, there are realistic limits as to what can be achieved. To be truly effective, 

any action meant to improve safety—whether mines or any workplace—through 

technology must fully consider whether appropriate ‘‘off the shelf’’ technology is 

readily available before mandates are put in place. 

Incentives for Technology 

Congress must also be aware that, in the metal/nonmetal sector, approximately 

98 percent of underground mines are classified as ‘‘small business entities’’ under 

U.S. Small Business Administration criteria. Many coal mines especially are small 

business enterprises with as few as five employees. 

ASSE hopes the Committee will consider this reality and look for creative solutions, such as establishing new tax incentives, giving operators some credit against 

93

citation penalties to encourage them to adopt new technology quickly, or making establishing small business loans for the purchase of mine rescue, communications 

and personal protective equipment. Such measures should help expedite the necessary protection of miners without unnecessarily diminishing the economic viability 

of these mining businesses, many of which are located in economically deprived 

areas of our nation. 

Effective Penalties 

Both legislative proposals offered by Senators Specter and Byrd would increase 

significantly penalties for violations of MSHA standards. ASSE fully supports strong 

enforcement and the role meaningful penalties can play in focusing an employer’s 

attention toward safety and health of its workers. 

From the popular reaction to the Sago tragedy, it is apparent that many outside 

the mining industry may not be aware that MSHA already has more enforcement 

power than any other federal agency, including: mandatory quarterly inspections of 

all underground mines; warrantless search authority and automatic right of entry 

under Section 103(a) of the Mine Act; strict liability enforcement powers; mandatory 

civil penalties for all citations; and civil penalties that have been increased from 

$10,000 to $60,000 in the past decade. Under Section 110(c) of the Mine Act, individual agents of management can be personally fined up to $60,000 for actions or 

omissions that constitute aggravated conduct—a power lacking in the Occupational 

Safety and Health Act covering every other industry. Moreover, the current Mine 

Act has felony criminal enforcement provisions of up to five years of incarceration, 

and, unlike OSHA, no injuries need occur for MSHA to recommend criminal prosecution by the U.S. Department of Justice. 

However much we would like to think that increases in maximum penalties may 

be appropriate, in the day-to-day reality of the mining industry that I work in, the 

heightened penalty levels of $500,000 for high negligence violations (compared with 

OSHA’s $70,000 maximum), the $10,000 minimum penalty for ‘‘serious’’ violations—

especially when compared with OSHA’s maximum of $7,000 for similar violations—

and the other enhanced penalties and ‘‘user fees’’ suggested in S. 2308 and S. 2231 

could very well put the average, well-meaning mine out of business with a single 

penalty. 

Moreover, as drafted, the legislation offering these increases is often ambiguous. 

For example, ‘‘habitual violators’’ would be subject to a minimum penalty of $20,000 

for ‘‘significant and substantial’’ citations. However, the legislation does not define 

‘‘habitual’’ and includes no statute of limitations after which a repeated violation 

would no longer trigger this mandatory minimum. Because MSHA does not ‘‘group’’ 

violations into a single citation as OSHA commonly does, it is not unusual for a 

mine to have multiple guarding or equipment violations in a single inspection. If 

each individual citation were assessed at $20,000 because these triggered the ‘‘habitual’’ provision, most mines could not withstand the penalty burden and continue to 

operate. This area must be more critically explored before any new categories of 

penalties are created. 

Unintended Consequences 

We also want to caution the Committee that some provisions of the proposed bills, 

though well intended, should be reconsidered following this hearing to ensure that 

unintended consequences do not result in everyone’s understandable eagerness to 

prevent another Sago from occurring. 

For example, provisions that would deny the Federal Mine Safety and Health Review Commission (FMSHRC) authority to modify penalties, or requiring abatement 

action on all citations within 24 hours—have critical due process implications that 

cannot be overlooked by this Committee if it is to move forward an effective program 

of reform. 

It also appears that, while the technology provisions of the proposed legislation 

largely concentrate on underground coal mines, the penalty provisions would cover 

all categories of mines, including surface aggregate operations that do not involve 

the same level of hazards as do underground operations. Such action appears unwarranted at this time. In particular, Section 7 of Sen. Byrd’s bill incorporates the 

definition of ‘‘coal mine’’ from the 1977 Act, which expands coverage to surface and 

underground metal/nonmetal mines and to all independent contractors performing 

any work at any mine, surface or underground Congress’ intent with respect to the 

proposed Senate legislation must be more clearly articulated to prevent inadvertent 

expansion of the provisions to those outside the underground coal mining sector. 

Other suggested provisions, such as a $100,000 minimum fine for failure to notify 

MSHA of an accident within fifteen minutes, are simply unachievable and may result in unintended consequences in individual situations. In many cases, especially 

94

in small mines with few workers, those who would make the call to MSHA must 

also be involved in immediate rescue activities longer than this time period would 

allow. Current provisions state ‘‘immediately,’’ which the FMSHRC has interpreted 

this to mean ‘‘two hours or less.’’ Moreover, there are eleven categories of accidents 

where this fifteen-minute notification requirement would apply, as set forth in 30 

CFR 50.2(h), so it could very well not be apparent within fifteen minutes that an 

incident such as a mine fire or a non-fatal injury falls into the immediately-reportable category. Clearly, we all like the response to mine tragedies to be immediate, 

but fifteen minutes is probably less than can be mandated effectively, especially 

given the enormity of fine for failure without regard to the impact of the accident. 

We urge the Committee to work with MSHA, NIOSH and stakeholders to reexamine 

this provision in order to determine a more meaningful way to ensure emergency 

response. 

With regard to mine rescue teams, Sen. Byrd’s legislation would direct all coal 

mines to have rescue teams consisting of their own employees. If this is to be 

achieved, the consequences of either closed mines or a market for coal that bears 

this cost must be understood. Many small mines have too few workers to field a 

team. This is why MSHA has for many years permitted mines to join together to 

form area rescue teams of highly trained personnel. This practice has been demonstrated to work effectively over many years and can remain as an effective option. 

Conclusion 

ASSE commends the Committee for its consideration of these various issues as 

well as Senators Specter and Byrd for their efforts in defining specific solutions to 

issues with which we all struggle. This leadership is needed if we are to move forward and help prevent another Sago tragedy. However, we urge the Committee not 

simply to assume a lack of MSHA enforcement powers or too weak penalties are 

the root cause of the failures we have seen. Along with an examination of penalties 

and more stringent requirements, the Committee must consider other factors that 

may not be readily apparent. 

It could be that the most effective solution is that MSHA make better, smarter 

use of its current powers and target enforcement resources more directly at the 

proven ‘‘bad actors’’ rather than being required to inspect all mines in exactly the 

same way, regardless of their compliance history or safety and health performance. 

It may be appropriate, if the Mine Act is reopened, to provide the agency with more 

flexibility in terms of these mandatory inspections so it can deploy its inspectors 

where they are most needed. More effective and not merely more severe enforcement may very well be the answer we all seek. Again, we urge the Committee to 

work with MSHA, NIOSH and stakeholders, both within industry and organizations 

like ASSE to help make these determinations. . 

ASSE thanks the Committee for including us in your deliberations. We stand prepared to provide further technical assistance through our Mining Practice Specialty 

as the Committee continues to explore these critical mine safety and health issues. 

We also pledge our support in working with MSHA and NIOSH as they look for new 

methodologies to protect miners and to improve existing standards, programs and 

outreach efforts.

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