```

[Senate Hearing 109-411]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-411
 
        NOMINATION OF EDWIN G. FOULKE, JR., AND RICHARD STICKLER

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

RICHARD STICKLER, OF WEST VIRGINIA, TO BE ASSISTANT SECRETARY OF LABOR 
  FOR MINE SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR; AND EDWIN G. 
FOULKE, JR., OF SOUTH CAROLINA, TO BE ASSISTANT SECRETARY OF LABOR FOR 
        OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR

                               __________

                       TUESDAY, JANUARY 31, 2006

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions

                    U.S. GOVERNMENT PRINTING OFFICE
25-886                     WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                   MICHAEL B. ENZI, Wyoming, Chairman

JUDD GREGG, New Hampshire            EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee                CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee           TOM HARKIN, Iowa
RICHARD BURR, North Carolina         BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia              JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio                    JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada                  PATTY MURRAY, Washington
ORRIN G. HATCH, Utah                 JACK REED, Rhode Island
JEFF SESSIONS, Alabama               HILLARY RODHAM CLINTON, New York
PAT ROBERTS, Kansas

               Katherine Brunett McGuire, Staff Director

      J. Michael Myers, Minority Staff Director and Chief Counsel

                                  (ii)

  

                            C O N T E N T S

                               __________

                               STATEMENTS

                       TUESDAY, JANUARY 31, 2006

                                                                   Page
Enzi, Hon. Michael B., Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Stickler, Richard, of West Virginia, to be Assistant Secretary of 
  Labor for Mine Safety and Health, U.S. Department of Labor; and 
  Edwin G. Foulke, Jr., of South Carolina, to be Assistant 
  Secretary of Labor for Occupational Safety and Health, U.S. 
  Department of Labor............................................     5
    Prepared statement of:
        Mr. Foulke...............................................     8
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, opening statement...............................    10
    Prepared statement...........................................    12
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  prepared statement.............................................    20
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  prepared statement.............................................    23
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared 
  statement......................................................    30

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Letter sent to President Bush from Cecil E. Roberts, the 
      International President of the United Mine Workers of 
      America....................................................    31
    Letters of support from various organizations................    35
    Response to questions of Senator Enzi by Edwin G. Foulke, Jr.    42
    Response to questions of Senator Isakson by Edwin G. Foulke, 
      Jr.........................................................    43
    Response to questions of Senator Kennedy by Edwin G. Foulke, 
      Jr.........................................................    43
    Response to question of Senator Bingaman by Edwin G. Foulke, 
      Jr.........................................................    46
    Response to questions of Senator Murray by Edwin G. Foulke, 
      Jr.........................................................    46
    Response to questions of Senator Enzi by Richard E. Stickler.    48
    Response to question of Senator Isakson by Richard E. 
      Stickler...................................................    49
    Response to questions of Senator Hatch by Richard E. Stickler    49
    Response to questions of Senator Kennedy by Richard E. 
      Stickler...................................................    49
    Response to questions of Senator Clinton by Richard E. 
      Stickler...................................................    52
    Response to question of Senator Bingaman by Richard E. 
      Stickler...................................................    55
    Response to questions of Senator Murray by Richard E. 
      Stickler...................................................    55
    Questions of Senator Harkin for Richard E. Stickler..........    57
    Questions of Senator Harkin for Edwin G. Foulke, Jr..........    58

                                 (iii)

  

        NOMINATION OF EDWIN G. FOULKE, JR., AND RICHARD STICKLER

                              ----------                              

                       TUESDAY, JANUARY 31, 2006

                                       U.S. Senate,
        Committee on Health, Education, Labor and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:07 p.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Michael B. 
Enzi (chairman of the committee) presiding.
    Present: Senators Enzi, Isakson, DeWine, Kennedy, Murray, 
Reed, and Clinton.

                   Opening Statement of Senator Enzi

    The Chairman. I am going to call to order this hearing. We 
will be joined shortly by others. Some of the policy luncheons 
are finishing at about this point in time. I will go ahead and 
do my opening statement, and by that time I am sure we will 
have been joined by others, and that way we can stay close to 
the schedule.
    I would like to welcome everyone to the confirmation 
hearing for Edwin Foulke to serve as Assistant Secretary of 
Labor for Occupational Safety and Health, and for Richard 
Stickler to serve as the Assistant Secretary of Labor for Mine 
Safety and Health.
    As we meet today, although the events of the recent past 
will not be the subject of our hearing, it is impossible to 
separate our focus on the issue of workplace and mine safety 
from the tragic mine accidents in three mines in West Virginia 
and Kentucky. For the past few weeks, the attention of the 
Nation has been centered on these mines as we watched the 
heroic efforts that were underway to try to save those who were 
trapped far below the surface. We then shared in the sorrow 
that the families felt as they received the news that their 
loved ones had died before they were able to be rescued. Our 
thoughts and prayers continue to be with all those whose lives 
were forever changed by that tragedy.
    The loss of those men in the darkness of that mine has 
brought a great light to bear on the issue of mine safety and 
the need for us to use every resource at our disposal to make 
every workplace, especially our mines, safer.
    A week ago last Friday, I traveled to West Virginia with 
Senator Rockefeller to meet with the families of the Sago Mines 
and to begin our committee's review of mine safety issues. I 
was accompanied by our ranking member, Senator Kennedy; our 
Employment and Workplace Safety Subcommittee chairman, Senator 
Isakson; and although she was unable to come with us because of 
an injury, Senator Murray, the ranking member of the Employment 
and Workplace Safety Subcommittee sent her very capable staff.
    Now, as we met with the families of those who had lost 
husbands, sons, fathers, we were moved by their determination 
and dedication to working with us to ensure that everything is 
done to both prevent and better respond to accidents in the 
future. Their firm resolve that a mining accident would never 
leave another family without a father strengthened our own 
commitment and increased our determination as a committee to 
look for ways that we as legislators could be part of the 
solution of this complex problem of workplace safety.
    Now, I can only imagine the pain of losing a loved one 
under circumstances like these, and we saw them trying to cope 
with their loss. It quickly became apparent that words were 
inadequate without a corresponding pledge to take action. Each 
of us who traveled those miles to West Virginia in our own way 
promised those families that the loss of their loved ones would 
not be an end but the beginning of the work that has to be done 
to address the issue of mining and workplace safety.
    Today, this committee begins the task of fulfilling our own 
responsibility for ensuring mine and workplace safety by 
examining the plans of our Nation's principal workplace safety 
officers for both the short-term and long-term change in our 
mines and other dangerous work environments.
    Now, our journey begins by ensuring that the Federal 
positions charged with overseeing worker safety are filled with 
accomplished, experienced, and visionary leaders. Fortunately, 
we will not be alone in that effort. The accidents of the past 
few weeks have brought together labor, industry, legislators, 
and other stakeholders on the local level, the State level, and 
the national level, all determined to make changes that are 
needed to make our mines as safe as they can possibly be.
    Now, coming from Wyoming, mining and worker safety are very 
familiar to me. As a former mayor of Gillette, WY, I know well 
that part of Wyoming we call ``the energy capital of the 
world'' because of the deposits of coal and coalbed methane and 
oil and uranium that are found there. Today, Wyoming is the 
largest producer of coal in the Nation. We mine and ship an 
average of 1 million tons of coal a day. Coal is vital to the 
economy of my State and equally vital to the economy and energy 
security of our country.
    I am also familiar with workplace safety issues and 
regulations from some of my employment before I ran for this 
office. I was an accountant, and one of my clients suggested 
that if they had a workplace safety program, they could save 
money. The owner of the company said to me, ``Well, then, do 
it.'' I said, ``Oh, no, no. I am the accountant. I am not a 
safety person.'' He said, ``Well, you already know more about 
it than anybody that works for me, so do it.'' And so I 
organized a safety program and got to see the advantages of 
having that happen and the difference that it can make and the 
money that it can save.
    Now, it is much better if it is done by true professionals, 
and that is why we have true professionals before us today. But 
my experience there taught me lessons I have never forgotten 
about what does and does not work in an effort to make the 
workplace safer. It also served to impress upon me the sincere 
and genuine interest of both employers and employees in the 
creation and the effort to maintain safe and healthful 
workplace environments.
    If history has taught us anything, it is that the advances 
and innovations that have been made in other fields of science 
and engineering are among the most effective means of 
addressing workplace safety. That means we must investigate the 
innovations that have been made by agencies like NASA and the 
work being done by the Department of Homeland Security to 
provide first responders to the scene of an accident with the 
tools they need to immediately begin rescue efforts. At the 
very least, it means using available technologies that may be 
able to locate miners and send them communications. It may be 
that we have the technology to do that and more, and we 
certainly have the technological base upon which to build even 
better tools for tomorrow.
    A hearing has already been held in the Senate and 
legislation has already been introduced on the State level to 
promote the use of tracking devices to determine where miners 
are to aid rescue efforts. In addition, there are already 
personal emergency devices in use in some mines that make it 
possible to deliver emergency text messages underground. In 
1998, there was a mine fire in Utah, and the use of these 
devices helped 45 miners escape to safety.
    These devices are available now; however, we have to 
improve their effectiveness so they can be used in more mines. 
Then in the event of an accident, we would know exactly where 
the miners are, and using these emergency devices, we could 
communicate to them and let them know if there are any routes 
available to them to bring them to a safe haven from which they 
could be rescued.
    It is unfortunate that it took the accidents at those mines 
to focus our attention on these issues, but it is clear of the 
need for better safety procedures that demand our action and 
demand it now. It is also clear that providing and promoting 
better safety procedures will produce better results for every 
company in terms of production, morale, and the ability to more 
effectively compete in the marketplace.
    Last year, the total number of mine fatalities was the 
lowest ever recorded. The injury rate in the mining industry 
was also the lowest on record. Overall, that tells me that the 
industry has made strides, improving and promoting workplace 
safety. However, we can do better. We must look for new and 
better ways to make mines and other hazardous workplaces safer 
for all workers.
    Legislation will surely play a role in this effort. As the 
chairman of the committee, I intend to work with my committee 
members, as well as other interested Senators and stakeholders, 
to draft legislation very soon to provide and promote mine 
safety based on the following principles:
    First, we must implement laws and regulations that work in 
the real world, not merely ones that score political points 
inside the Beltway. In doing so, we must keep our approach to 
workplace safety simple and easily understood by everyone 
involved, including small businesses and their workers.
    Second, we need to realize that workplace safety is a team 
effort and it involves everyone on every level of the 
organization. It even involves the families. There are no 
adversaries in the effort to promote workplace safety. To 
achieve success, we have to get everyone involved from the top 
down and the bottom up. Of course, employers have to take an 
active leadership role in the effort, that is, leading the best 
way, by example, and it will ensure workers understand the 
importance of safety by making it everyone's first and primary 
responsibility.
    Third, we must recognize that every worker must have every 
possible tool at their disposal to increase their safety, and 
that comes with the training and supervision necessary to 
ensure that they are using the equipment properly and safely. 
As in all things, workplace safety involves training, a 
constant improving of skills, and a good basic education on 
ways to avoid accidents and what to do if they occur.
    Over the years, the Occupational Safety and Health Act has 
helped in the promotion of workplace safety by reducing by 60 
percent the number of workplace fatalities and decreasing by 
more than 40 percent the rate for occupational illness and 
injury. One of my primary goals upon coming to Congress was to 
improve the effectiveness of Federal worker safety oversight 
and not to create more bureaucracy and red tape.
    Just before the holidays, I introduced three OSHA reform 
bills, and each is cosponsored by five fellow members of the 
HELP Committee. We believe that this legislation will improve 
both OSHA and worker safety, and we look forward to moving them 
this year.
    At the Federal level, the Occupational Safety and Health 
Administration and the Mine Safety and Health Administration 
are the two bodies that Congress has charged with the primary 
responsibility for ensuring and enhancing workplace safety. It 
is essential to this mission that both agencies have 
experienced and permanent leadership. At present, neither of 
these important agencies has the benefit of such permanent 
leadership.
    While both agencies have been ably served by dedicated 
individuals in acting capacities, the benefits of permanent 
leadership cannot be understated. We now have the opportunity 
to realize these benefits by the expeditious confirmation of 
the two nominees appearing before this committee today. It is 
an opportunity on which we must act now to provide the 
leadership that is needed to begin the process of addressing 
the issues of workplace safety that have come to light in the 
past few weeks.
    Equally essential to the permanency of the leadership at 
these agencies is the experience of those who will lead them. 
The committee nomination process is where we have the 
opportunity to hear from the nominees and to review their 
qualifications. I would urge my colleagues to wait until we 
have had the chance to hear from the nominees and to review 
their responses to our questions before they reach final 
judgment.
    We are fortunate to have two nominees who have spent their 
entire working careers deeply involved and engaged in issues 
that lie at the core of their respective agencies' 
responsibilities. Richard Stickler, the nominee to head the 
Mine Safety and Health Administration, has extensive experience 
in the mining industry that spans over 37 years. Mr. Stickler 
has worked as a miner, engineer, mine construction foreman, 
mine shift foreman, superintendent, and manager. He left 
private sector employment in 1997 to become the director of the 
Pennsylvania Bureau of Deep Mine Safety, where he served for 6 
years.
    Now, like Mr. Stickler, Mr. Foulke's professional career 
has been one of extensive involvement in workplace safety 
issues. Mr. Foulke is an attorney who has specialized in the 
practice of labor and employment law. He is a partner in the 
firm of Jackson, Lewis, Schnitzler & Krupman, and a member of 
the firm's OSHA practice group. In addition to his private 
practice, Mr. Foulke served as a member of the Occupational 
Safety and Health Review Commission for 6 years, 5 of which he 
served as the chairman.
    I look forward to hearing from both of you today.
    At this point we will go ahead with the opening statements 
by the two nominees. I want to thank both of you for attending. 
I appreciate the cooperation you have given us on getting the 
credentials together. I would mention that Mr. Foulke has 
letters from Senator Graham and Senator DeMint, and he is 
accompanied by his wife and his mother.
    I would mention that Mr. Stickler has a letter of 
recommendation from Governor Schweicker.
    The Chairman. Mr. Stickler, would you like to make your 
statement?

    STATEMENTS OF RICHARD STICKLER, OF WEST VIRGINIA, TO BE 
 ASSISTANT SECRETARY OF LABOR FOR MINE SAFETY AND HEALTH, U.S. 
    DEPARTMENT OF LABOR; AND EDWIN G. FOULKE, JR., OF SOUTH 
 CAROLINA, TO BE ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL 
          SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR

    Mr. Stickler. Mr. Chairman and members of the committee, I 
would like to thank you for inviting me here today. I am 
honored to be here, and I am humbled by the President's 
confidence in me to lead this critical agency.
    Mr. Chairman, you can read my resume to learn about my 
qualifications for this job. I believe I have the background 
and the experience to do this job.
    But I sincerely welcome the opportunity to tell you why I 
want to come out of retirement to accept this position, if 
confirmed by the Senate.
    Mr. Chairman, I have been an underground miner. I was in 
the mines before the Federal Mine Safety and Health Act was 
passed. I can attest to the fact that the mines are safer today 
because of MSHA, and I am committed to this law.
    I have also been a member of a mine rescue team. I have 
participated in attempts to rescue miners.
    In 1968, I was working underground in a mine adjacent to 
the Farmington Mine when 78 miners lost their lives due to a 
methane gas explosion. The sights and sounds of that experience 
as well as other tragic accidents will be with me as long as I 
live.
    Mr. Chairman, Senator Kennedy, I know what it feels like to 
lose friends and co-workers in tragic mine accidents. I have 
great empathy for those at the Sago and Aracoma Mines who have 
just recently felt that same loss. There is nothing worse.
    As a mine superintendent and a State regulator, I know what 
it is like to face the families.
    Some people have asked me why I still want this job 
considering the increased scrutiny that MSHA is under. They 
know me well. They know I am not one for the spotlight.
    But I want this job because I have ``been there.'' I 
believe I have something positive to contribute to this agency 
and its mission. I want nothing more than to see fatal 
accidents and injuries continue to fall.
    I had the opportunity over the course of my career to work 
at almost every level in the mining industry. I have been a 
rank-and-file miner, a foreman, and superintendent. I have 
experience managing large and small mining operations, 
including the largest underground coal mine in the Nation. I 
have experience managing operations with various safety 
challenges.
    My passion for addressing these challenges by itself does 
not solve safety problems. I follow an analytical approach to 
identify the root causes of accidents. With others on my team, 
I develop systematic solutions, set improvement goals, and 
measure results.
    These solutions to improve mine health and safety include 
the implementation of innovative engineering, new technology, 
safety training, and participative management processes. It 
goes without saying that adherence to standards is also key.
    I chose to leave the mining industry in 1997 to serve as 
Director of the Pennsylvania Bureau of Deep Mine Safety, where 
I served for 6 years. The decision to accept that position was 
based on my desire to spend the remainder of my career focused 
specifically on improving mine health and safety.
    This is also my reason for accepting the President's 
nomination to this critically important position at the 
Department of Labor.
    Throughout my career, I have witnessed legislative 
improvements as well as increased funding for mine health and 
safety, and I thank you for that. As a result, we have seen 
tremendous improvement in mine health and safety, but the job 
isn't done until we can prevent tragic accidents like Aracoma 
and Sago Mines.
    I feel indebted to the thousands of miners that I have 
known, including my father and my grandfather. If I am 
confirmed, I will do my best to honor the legacy of those who 
have labored to provide fuel and natural resources for our 
Nation. I would appreciate the chance to work with the 
President, the Secretary of Labor, and the Congress to see mine 
safety continue to improve in our Nation's mines.
    Thank you.
    The Chairman. Mr. Foulke.
    Mr. Foulke. Thank you, Mr. Chairman and Senators of the 
HELP Committee. I am deeply honored to appear before you 
today----
    The Chairman. I don't think your microphone is on. I am 
sorry.
    Mr. Foulke. The light is on.
    The Chairman. Can you pull it a little closer to you, then?
    Mr. Foulke. Can you hear me now?
    The Chairman. Thank you. Yes.
    Mr. Foulke. Thank you, Mr. Chairman. I am deeply honored to 
appear before you today. I am also deeply honored to have been 
nominated to be Assistant Secretary of Labor for Occupational 
Safety and Health by President George Bush and to be supported 
in my nomination by Secretary Elaine Chao. I am also grateful 
to Senators Lindsey Graham and Jim DeMint for their kind 
letters of support. I would also like to introduce to the 
committee my wife, Wendy, and thank her publicly for being 
supportive of my returning to Washington to serve our country. 
Also, my mother is here, too. I think all of you know the 
personal sacrifices that are associated with public service for 
our spouses.
    Permit me just a few minutes to take time to tell you about 
myself. I attended college on a swimming scholarship at North 
Carolina State University, where I graduated with honors in 
political science. I graduated from Loyola University in 1978 
and took my first job with a labor and employment law firm in 
Greenville, SC. It was at this job that I began to work in the 
area of occupational safety and health.
    In October 1989, I was nominated by then-President George 
Bush to be Chairman of the Occupational Safety and Health 
Review Commission. I served on the Review Commission for a 
little over 5 years in both the Bush and Clinton 
administrations. The Review Commission is an excellent forum to 
see firsthand that there are two sides to every issue and to 
appreciate that the law must be fairly applied in all cases.
    After leaving the Review Commission in 1995, I joined the 
Jackson Lewis law firm and have headed up the firm's OSHA 
practice group nationwide. I have been involved in all aspects 
of the workplace safety and health law in my 20-plus years of 
OSHA practice. I have worked with clients in a wide variety of 
industries and handled OSHA matters in many States throughout 
our great country. In my practice I have represented not only 
large and medium-size companies, but also many small family-
operated businesses. Also, as Chairman of the Review 
Commission, I was responsible for oversight of the day-to-day 
operations of the agency.
    I recognize the importance of this job to our Nation's 
working men and women. Having been involved in a number of OSHA 
fatality investigations, I am acutely aware of the devastating 
effect such accidents have on families, as well as employers, 
fellow workers, and the surrounding community. The impact of 
these tragedies can never be minimized. For this reason, 
injury, illness, and fatality prevention will continue to be 
the top priority of OSHA if I am confirmed.
    Having been involved in hundreds of OSHA inspections and 
cases, I am aware of the issues OSHA personnel face in carrying 
out their responsibilities. I realize the importance of 
continuing to enhance the training and professionalism among 
the compliance officers, and, if confirmed, I will look for 
ways to encourage and reward such professionalism.
    I have also heard the concerns of employers, especially 
small employers, over their lack of knowledge of what is 
expected of them. If confirmed, I will work to provide more 
tools and assistance to all employers who lack the expertise 
and the resources to have a comprehensive safety program. To 
achieve this, I will continue to pursue the outreach, 
education, and compliance assistance efforts instituted by my 
predecessors. However, strong, fair, and effective enforcement 
will still play a visible and active role in OSHA's overall 
game plan, if I am confirmed.
    Finally, I am aware of the desire of workers throughout our 
country who want to work sure in the knowledge that they have a 
safe and healthful job. If confirmed, I will devote the time 
and energy to provide the assistance and information they need 
in the language they understand to help them achieve this 
desire.
    In closing, if confirmed, I will work tirelessly to improve 
the safety and health of all working individuals in America. I 
want OSHA to expand its outreach and to partner with all 
stakeholders working toward the common goal of substantially 
reducing occupational injuries, illnesses, and fatalities. I 
want to make a positive contribution in making OSHA ``the 
resource'' for all employers' and workers' safety and health 
needs. Finally, I want to ensure that OSHA is efficiently using 
its resources to improve workplace safety and health and that 
the programs and initiatives are yielding the maximum results 
for workers and their employers alike.
    I would like to thank the committee for allowing me this 
time for these remarks, and I will be happy to answer any 
questions the members of the committee may have.
    [The prepared statement of Mr. Foulke follows:]

               Prepared Statement of Edwin G. Foulke, Jr.

    Mr. Chairman and Senators on the HELP Committee, I am deeply 
honored to appear before you today. I am also deeply honored to have 
been nominated to be Assistant Secretary of Labor for Occupational 
Safety and Health by President Bush and to be supported in my 
nomination by Secretary Elaine Chao. I am grateful to Senators Lindsey 
Graham and Jim DeMint for their support. I also would like to introduce 
to the committee my wife, Wendy, and to thank her publicly for being so 
supportive of my returning to Washington to serve our country. All of 
you know the personal sacrifices that are associated with public 
service for our spouses.
    Permit me to take just a few minutes to tell you about myself. I 
grew up in Pennsylvania just outside Philadelphia. I attended college 
on a swimming scholarship at North Carolina State University in Raleigh 
where I graduated with honors in political science. I graduated from 
Loyola University Law School in New Orleans in 1978 and took my first 
job with a labor and employment law firm representing management in 
Greenville, South Carolina. It was in this job that I began work in the 
area of occupational safety and health law.
    In October 1989, I was nominated by President George Herbert Walker 
Bush to be Chairman of the Occupational Safety and Health Review 
Commission. I served on the Review Commission for 5 years in both the 
Bush and Clinton administrations. The Review Commission is an excellent 
forum to see first hand that there are two sides to every issue and to 
appreciate that the law must be fairly applied in all cases.
    After leaving the Review Commission in 1995, I joined the Jackson 
Lewis law firm and have headed up the firm's OSHA practice group 
nationwide. I have been involved in all aspects of workplace safety and 
health law in my 20 plus years of OSHA practice. I have worked for 
clients in a wide variety of industries and have handled OSHA matters 
in many States throughout our great country. As a result, I have worked 
not only with Federal OSHA, but also with many officials in OSHA State 
plans. In my practice, I have represented not only large and medium 
size companies, but also many small family operated businesses. Because 
of my extensive involvement in the OSHA area, I have come to know many 
of the top OSHA officials at the Federal and State levels. Also, as 
Chairman of the Review Commission, I was responsible for oversight of 
the day-to-day operations of the agency. All this previous experience 
and my background will allow me, if confirmed, to ``hit the ground 
running'' at OSHA.
    I recognize the importance of this job to our Nation's working men 
and women. As head of OSHA, I understand that I will be ultimately 
responsible for helping to ensure as much as possible that every 
employee in the United States works in a safe and healthy workplace. 
Because of my years of involvement in this area, I also believe that 
health and safety in the workplace has positive economic value. Fewer 
injuries and illnesses mean less loss work time and greater 
productivity and ability to compete in the world marketplace.
    Having been involved in numerous OSHA fatality investigations, I am 
acutely aware of the devastating effects such accidents have on the 
families, as well as employers, fellow workers, and the surrounding 
community. The impact of these tragedies cannot be minimized. For this 
reason, injury, illness and fatality prevention will continue to be the 
top priority of OSHA if I am confirmed.
    In working to achieve this goal, I believe communication and 
outreach to all stakeholders in the process is essential. At the Review 
Commission, I found that the more input I received, the better the 
decisions I made. In addition, it is important to have measurements in 
place to determine if progress and success is being made towards the 
agency's goals. To do this, I will look to set goals for programs or 
initiatives that not only are achievable, but also are measured 
accurately. Also, OSHA must ensure that any program initiatives or 
commitments it undertakes will be adequately funded.
    I also understand the importance and the inter-dependence of the 
three major responsibilities of the OSHA. These are: (1) standard 
setting and revision, (2) compliance assistance, and (3) enforcement. 
Each of these aspects contributes to the overall success of OSHA and 
the achievement of OSHA's ultimate goal of having an effective safety 
and health program in every worksite in the country.
    Having been involved in hundreds of OSHA inspections and cases, I 
am aware of the issues OSHA personnel face in carrying out their 
responsibilities. I understand the challenges OSHA compliance officers 
encounter in conducting workplace inspections. I realize the importance 
of continuing to enhance the training and professionalism among the 
compliance officers. If confirmed, I will look for ways to encourage 
and reward such professionalism.
    I also have heard the concerns of employers, especially small 
employers, over their lack of knowledge of what is expected of them. 
Based on my experience, the vast majority of employers want to have a 
safe and healthful workplace, but do not have the understanding, 
processes and/or tools to accomplish this. If confirmed, I will work to 
provide more tools and assistance to all employers, but especially to 
the small employers who lack the expertise and resources to have a 
comprehensive safety program. To achieve this, I will continue to 
pursue the outreach, education and compliance assistance efforts 
instituted by my predecessors. This will include expanding partnership 
and voluntary programs at the local, regional and national levels. 
However, strong, fair and effective enforcement will still play a 
visible and active role in OSHA's overall game plan.
    Finally, I am aware of the desire of workers throughout our country 
who want to work sure in the knowledge they have a safe and healthful 
job. If confirmed, I will devote the time and energy to provide the 
assistance and information they need and in a language they understand 
to help them achieve that desire.
    In closing, if confirmed, I will work tirelessly to improve the 
safety and health of all working individuals in America. While OSHA has 
done much to improve safety and health in the United States, there is 
still much that can be accomplished. I want OSHA to expand its outreach 
and to partner with all stakeholders working toward the common goal of 
substantially reducing all occupational injuries, illnesses and 
fatalities. I want to make a positive contribution in making OSHA ``the 
resource'' that all employers, especially small employers, as well as 
all working men and women, are encouraged to turn to, without fear, to 
receive assistance, and for answers to all their safety and health 
needs. The more successful we are, the greater will be the numbers of 
employers and workers who recognize that instituting a comprehensive 
safety and health program not only provides tangible benefits, but will 
also assist those businesses to become more competitive at local, 
national and global levels. Finally, I want to help ensure that OSHA is 
effectively using its resources to improve workplace safety and health 
and that its programs and initiatives are yielding the maximum results 
for workers and their employers alike.
    I thank the committee for allowing me this time to make these 
remarks. I will be happy to answer any questions the members of the 
committee may have.

    The Chairman. I want to thank both of you for your 
statements, and I will have Senator Kennedy do his opening 
statement, and then we will proceed to questions for you. We 
will do 5-minute questions per person, but we will go as many 
rounds as anybody has questions to ask.
    Senator Kennedy.

                  Opening Statement of Senator Kennedy

    Senator Kennedy. Well, thank you very much, Mr. Chairman. I 
want to acknowledge our strong leadership on our side by 
Senator Murray, who is our ranking member on this committee, 
works with Senator Isakson, has taken on the real 
responsibility in terms of worker safety, employment, and 
training programs. So I am grateful for all that she does in 
helping us better understand and try to create an atmosphere 
and a climate to make sure that we are going to have the safest 
working atmosphere for workers in any place in the world. There 
is no reason not to have it, and I see my colleague Senator 
Reed here as well, so I thank him for his attendance and 
involvement and their concern about this issue.
    And I thank you, Mr. Chairman, and, Senator Isakson, I 
thank you for bringing us all down to West Virginia just a few 
weeks ago. I will say more about this in just a moment.
    I was here when we passed the OSHA legislation, and what a 
difference it made for workers. You know the difference: a 75-
percent reduction in terms of fatalities of workers, from 16 
out of every 100,000 workers to 4 out of every 100,000 workers. 
It has been dramatic. And that is when we had very, very tough 
enforcement, and the savings of lives has just been profound, 
and the reduction in terms of injuries. And it has taken a 
variety--it takes tough enforcement, tough inspection, and also 
issuing these various safety rules and regulations.
    Last year, 2004, is the first year in 10 years that rate of 
fatalities went up. Deaths went up. We want to make sure we 
have someone that is going to really be serious about the 
enforcement of OSHA.
    This administration is the first since the OSHA Act was 
passed to fail to issue a single major safety standard. We know 
the difficulty. Some of these standards have taken 10, 12 years 
to get out, and we know the power of the various industries. 
But this is the first time that we haven't had a single major 
safety standard. Maybe there is a good reason for it, but I 
have not heard it. We have seen the deaths go up. We have seen 
the failure to have an OSHA standard on this.
    The administration has refused to take really any action on 
ergonomic standards. I know they have a difference with the 
previous administration, but we are well beyond the Clinton 
administration. We have the Academy of Sciences that has done a 
review about ergonomics. We had study after study done by the 
Academy of Sciences. We know that the administration took issue 
with what the Clinton administration did, but we do not have 
any action by this administration on ergonomics. And with the 
scientific record that we have, we want to know why. We want to 
know why.
    We also are going to come back to the questions about the 
enforcement and the penalties. Every day workers are killed. 
Their employers walk away with a slap on the wrist. These are 
family members who are mourned and loved.
    Mike Morrison was killed in a trench cave-in last year when 
the employer ignored safety rules. The employer was fined 
$21,000.
    Les James was the second worker killed at his company. It 
ended up paying only $2,700 in fines, and another worker died 
on the job 2 years later.
    So we want to know what you are going to do about those 
kinds of circumstances. They are troublesome and bothersome. We 
congratulate you on the nomination, but this is what you are 
walking into.
    I want to thank as well Mr. Stickler for his willingness to 
take on this challenge. It brings us back, as the Chairman 
remembers, Senator Isakson, I know Senator Murray did 
everything she possibly could on relatively short notice. We 
are grateful to the chairman for bringing us down to West 
Virginia. And I for one will never forget--and I am sure the 
chairman has mentioned this, and Senator Isakson as well--the 
meeting with the families there. It was just one of the most 
moving meetings that I have had ever--in public life or private 
life--the couple of hours that we spent there. The frustration 
of the various miners that wanted to go back into the mine, 
risk their own lives to try and save others. The knowledge that 
these miners had about the nature of the dangers that people 
were facing and the suggestions that they had. The emotions 
which they reflected in describing what they perceived to be 
the last hours of their husbands, their loved ones who were in 
that mine, in dark and getting darker and darker and the fear 
that they had and their hopes and dreams of being able to see 
their children.
    I think all of us who went there made the commitment that 
we were going to do everything we possibly can to make sure 
that we were not going to have any more mine disasters and that 
we were going to do everything that we possibly can. And I am 
very hopeful and will do everything I can to make sure that 
those that are doing the investigations of these tragedies are 
going to listen to these families. They were a source of 
enormous ideas, suggestions, recommendations, and insights that 
should not and must not be lost.
    As we were listening down there to a number of those people 
speak about the new technologies, we were listening, well, if 
we have new technologies that are going to be there, 
electronics that are going to follow the men around, that may 
be a danger in terms of sparks, and this may make it more 
dangerous in the mine. If we put oxygen down in the mines, we 
are creating perhaps a new kind of hazard down there if there 
is going to be some fire. And we heard--at least I did--a 
number of suggestions that were made about new technologies and 
new ideas, and then we kept hearing about how we couldn't do 
that, it just was too dangerous.
    Well, yesterday, 72 miners in Canada were saved after a 
mine fire because a Canadian law requires rescue chambers where 
miners have 36 hours of breathable air, they have water, they 
have light, and they have supplies. And every one of those 
miners came out of a deep mine where there was fire, and every 
one came out alive. And it is difficult for me to be able to 
talk to those families and say how can they do it in Canada and 
we can't do it here. And I have to be convinced that you have 
the energy, the enthusiasm, the knowledge, and the willingness 
to be able to do it here, Mr. Stickler, to vote for your 
confirmation.
    I thank the Chair. I appreciate it.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    Today we will hear from the nominees for two major 
positions at the Department of Labor. The two people before us 
today are nominated to positions of the highest trust and it is 
our obligation to focus closely on whether they can fulfill 
that trust. Richard Stickler has been nominated to head the 
Mine Safety and Health Administration, and Edwin Foulke has 
been nominated to head the Occupational Safety and Health 
Administration.
    The recent tragedies at Sago Mine and Alma Mine in West 
Virginia remind us that the safety of the Nation's workers must 
be paramount. Mining continues to be extremely hazardous--it 
has consistently been the first or second most dangerous 
industry in the country. This year we have had 17 mine 
fatalities, 15 of them in coal mines. This is already over one-
quarter of the deaths that we saw during all of last year.
    Our entire Nation joins their families and their 
communities in mourning these fallen miners. Mr. Chairman, I 
ask for permission that a complete list of the miners who were 
killed at Sago and Alma mines be included in the record today.
    We have a continuing obligation to do everything we can to 
protect the safety of America's workers. It's obvious that we 
are not meeting that obligation today. Whoever leads MSHA in 
the future can and must do better.
    Two weeks ago, Senator Rockefeller hosted a visit by our 
committee to West Virginia. Chairman Enzi, Subcommittee 
Chairman Isakson and I met with the family members of the 
miners who died in that tragic accident and with coalminers; we 
met with company representatives and talked with health and 
safety experts. Each of us made a sincere commitment to 
improving the Nation's mine safety laws.
    Our committee will hold a hearing in early March to discuss 
the initial findings of the investigation into the Sago Mine 
disaster. I look forward to working with my colleagues to 
develop a bipartisan bill to meet our obligations to the 
Nation's miners.
    These recent tragedies highlight the critical role played 
by MSHA. Unfortunately, the administration has often given mine 
safety short shrift, seeking to reduce the coal safety 
enforcement budget in 4 of the last 5 years, and cutting nearly 
200 positions from it.
    We need to reverse this trend, and our Nation's coal miners 
deserve a nominee who can do this. We need a person of vision, 
who will be an aggressive leader in strengthening MSHA and 
preventing future tragedies like the two we have already 
experienced.
    I'm concerned that Mr. Stickler may not be that person. He 
is not someone with an extensive background in safety and 
health issues. His record at the Pennsylvania Bureau of Deep 
Mine Safety does not show an aggressive attempt to raise 
standards--in fact, it seems at times he may have sought to 
loosen them. Hopefully, we will learn more today about his 
record and his views about the direction MSHA should take.
    There are a number of key priorities that I believe any 
leader of MSHA must address.
    Obviously, the first priority will be the investigation of 
the Sago Mine and Alma Mine disasters. These families must be 
heard--they know a great deal when it comes to protecting 
miners' safety. It is incredible to me that in accident 
investigations, the company is allowed to be present, miners 
are allowed a representative, but the family members of a miner 
who has been killed have no voice. We must find a way to bring 
their knowledge and experience into the process.
    We also need to combine strong standards with advances in 
technology. Techniques for extracting coal and metals from the 
ground have improved immensely in recent years, but the 
technology for miners' oxygen self-rescue units and 
communications equipment is 30 years old.
    I know that MSHA is collecting information on possible 
technologies over the next 60 days. But collecting information 
is not enough.
    We already know of better communications and miner tracking 
technology from Australia--it has been available in the United 
States for several years, but only a handful of mines here in 
the United States are using it, despite its proven ability to 
help save miners' lives. And 72 workers at a mine in Canada 
were saved yesterday because Canadian mines are required to 
provide adequate stores of oxygen. We need to require that up-
to-date technology and resources be applied to every mine in 
the United States.
    We also need to see that every mine is adequately prepared 
to respond to future emergencies. When miners are trapped 
underground, every minute is precious. Yet our laws and 
policies do not require mine rescue teams to be onsite. All too 
often it takes hours for rescuers to reach a mine, and when 
they do arrive, they may not be familiar with the layout of the 
mine.
    We also are losing experienced miners to work on these 
teams, as the Pennsylvania Mine Safety Department identified 
when Mr. Stickler was its leader. Yet, incredibly, in December 
2002, MSHA withdrew an initiative to improve mine rescue 
capabilities from its regulatory agenda.
    A critical duty of the Assistant Secretary is to enforce 
mine safety laws. Many of us are concerned that the current 
system does not provide a significant deterrent to mine 
operators who continually violate the law. Sago Mine had an 
injury rate nearly three times that of the national average and 
had been cited by MSHA for over 200 safety violations in 2005. 
Nearly half of these were ``serious and substantial''--meaning 
that the violations had the potential to lead to serious 
injury. Eighteen of the violations were so serious that they 
led to partial closures of parts of the mine.
    I know that President Bush has proposed raising maximum 
fines for the most flagrant violations from $60,000 to 
$220,000. But the minimum fines are part of the problem--they 
are so low as to be toothless. It is difficult to believe that 
penalties lower than traffic tickets will deter companies that 
make millions of dollars in profits each year.
    All of these issues must be front and center for the future 
leader of MSHA. Our Nation's miners and their families deserve 
no less.
    We will also hear today from Mr. Ed Foulke, the nominee to 
head OSHA.
    We have made major progress since OSHA was first created in 
1974. The fatality rate has dropped by 75 percent, and injuries 
have also been drastically reduced.
    But we still have a long way to go. There are still too 
many workers being injured on the job. In 2004, over 5,700 
workers were killed and over 4 million workers were injured or 
became ill because of their jobs. Most troubling, the rate of 
worker deaths on the job increased in 2004, for the first time 
in over 10 years.
    This week we remembered the deaths of the 7 brave 
astronauts--including Christa McAuliffe--who were killed as 
they sought to do their job, to extend our research into 
outerspace. The whole Nation mourned them.
    Yet twice that many workers are killed in this country 
every day. Most of their cases do not become news stories, but 
that does not make their deaths any less tragic.
    There is much that needs to be done to make the Nation's 
workplaces safer. The focus is on mine safety today, but 
workers in other industries also face serious risks, and the 
head of OSHA has a heavy responsibility to protect them.
    Several priorities are clear. OSHA must complete needed 
safety rules. We know that strong safety standards save lives. 
Its cotton dust standards saved hundreds of thousands of 
textile industry workers from brown lung. Standards also save 
employers money and increase productivity. OSHA's vinyl 
chloride and cotton dust standards made industry more 
productive and safer for workers.
    But the Bush administration is the first since the act was 
passed in 1974 that has failed to issue a single major safety 
standard. A number of safety standards have been delayed for 
years in the Department, some of which were already in final 
form when President Bush took office, but still have not been 
completed.
    We're still waiting for a rule to see that employers 
provide needed personal safety equipment, such as hard hats and 
safety gloves.
    Failing to ensure that workers have such equipment is a 
particular burden for low-income workers. The Congressional 
Hispanic Caucus has stressed that the lack of a rule hurts 
Latino and immigrant workers. Such protections are clearly 
overdue.
    Our health and safety laws also need to keep up with 
industry changes. We need a way to quickly and effectively 
determine what exposure limits to toxic chemicals are safe for 
workers. Mr. Foulke himself has testified before Congress, on 
behalf of the Chamber of Commerce, about the need to set new 
Permissible Exposure Limits, and I look forward to hearing from 
him about what he would do to see that these protections are 
updated.
    Ergonomics is another priority, since it's the leading 
health and safety issue facing workers today. Nearly 1.5 
million workers suffered ergonomic injuries last year, and over 
400,000 of them lost time away from work.
    Employees need strong standards to protect them from these 
painful and often crippling injuries. Yet this administration 
has refused to issue such a rule, relying instead on a 
``Comprehensive Plan'' to address ergonomics violations.
    Since the announcement of its plan, however, the Department 
has issued only three sets of final industry guidelines--which 
are only voluntary and leave tens of millions of workers 
uncovered. The Department has brought only 17 general duty 
citations for ergonomics violations. These protections are far 
from comprehensive. We must do more.
    In addition, OSHA's actions should reflect a serious 
commitment to protecting workers' safety. Unfortunately we see 
too many examples of companies getting away with slaps on the 
wrist. Companies are putting millions of workers at risk in 
factories, construction sites, nursing homes, and many other 
workplaces every day.
    Civil penalties under the law have not been increased since 
1990. Every day workers are killed on the job and their 
employers walk away with a slap on the wrist.
    Mike Morrison was killed in a trench cave-in last year. The 
company had ignored required safety precautions and was fined 
$21,000. Les James plunged to his death from a window-washing 
job, and the company was fined only $2,700--even though another 
worker had been killed on the job 4 years before. And 
tragically, another worker at that company fell to his death 2 
years later.
    This is a chronic problem. A December 2005 investigation by 
the Kansas City Star found that in accidents in the area in 
which workers were injured or died, half of the fines paid by 
employers were $3,000 or less. And in multiple cases where 
workers were killed, OSHA reduced the seriousness of the 
citation from ``willful'' to ``unclassified,'' and fines were 
likewise reduced.
    Criminal penalties are also weak. Killing a worker by 
willfully violating the health safety laws is punishable by a 
maximum of 6 months in jail--half the length of sentences 
imposed for acts like harassing a wild burro. With these 
inadequate penalties, far too many cases go unprosecuted.
    Because this problem is systemic and gravely serious, I've 
addressed it in legislation introduced last year. The 
Protecting America's Workers Act will increase civil and 
criminal penalties when workers are killed or seriously 
injured. It will also give family members the right to 
participate in investigations and to have a voice when OSHA 
negotiates with employers about reducing or adjusting fines.
    Finally, OSHA must do more to protect our Nation's most 
vulnerable workers. Latino and immigrant workers are at greater 
risk of occupational injury or illness, because they are 
concentrated in some of the most dangerous jobs in the country, 
including jobs in construction, sweatshops, and landscaping.
    The promise of our health and safety laws is waiting to be 
fulfilled. The best way for us to honor the Nation's dedicated 
working men and women is to see that the full promise of these 
laws becomes a genuine reality for every working family in 
every community in America. I look forward today to hearing 
from Mr. Foulke about what he will do to fulfill that trust.

Sago Miners

     Thomas Anderson
     Alva ``Marty'' Bennett
     James Bennett
     Jerry Groves
     George Junior Hamner
     Jesse Jones
     Terry Helms
     David Lewis
     Martin Toler, Jr.
     Fred Ware, Jr.
     Jackie Weaver
     Marshall Winans
     Surviving Miner Randal McCloy, Jr.

Alma Miners

     Don Bragg
     Ellery Hatfield

    The Chairman. Thank you. We will now go to the rounds of 
questions, and I will lead off.
    That truly was a moving day that we had down there, meeting 
with the families, also meeting with the miners on the crew 
that were able to get out, and talking to all of them about 
what kinds of things could have made a difference, should have 
made a difference.
    Of course, one of the things that we can easily work on is 
new technology, but one of the things that I was told was that 
when we have new technology, it has to be approved by MSHA 
before it can actually go into use. And so if we were to locate 
some technology that was kind of fail-safe down in these mines, 
underground mines, how long would it take MSHA to procedurally 
approve it, do you think, Mr. Stickler?
    Mr. Stickler. Senator, I am not familiar with the current 
lag time on approving permissible equipment, but I would tell 
you that I would do everything I possibly could to get it 
approved and used in an expeditious manner.
    The Chairman. Thank you. In reviewing your nearly 40-year 
career, I did note that in addition to serving in the 
supervisory and managerial positions, you also began your 
career--and you mentioned this in your testimony, too--as a 
coal miner, and then later was even a member of a mine rescue 
team. And you served 6 years in the public sector as a 
Government regulator with the Pennsylvania Bureau of Deep Mine 
Safety.
    Given this background, I was somewhat surprised by recent 
criticism of your nomination to the effect that your experience 
was somehow inadequate or that it suggested you would only 
represent the interests of the mining industry, and I would 
like to give you an opportunity to respond to those claims.
    Mr. Stickler. Well, I think my experience is in the record 
and speaks for itself as far as the positions I have held, the 
jobs I have done, and the education and knowledge that I have.
    But as far as enforcement of the mine safety laws, I think 
a good example is the performance that I had in the State of 
Pennsylvania. During the 6 years that I was director of the 
Pennsylvania Bureau of Deep Mine Safety, the enforcement 
actions were trending up. In other words, they were higher the 
year I left than the year that I took the job.
    The Chairman. Thank you.
    Mr. Foulke, the biggest challenges for OSHA, as you know 
from our discussions, workplace safety is a very important 
issue to me and one which I have been involved in for much of 
my career, and you have as well. Certainly much progress has 
been made, but I believe we can do better.
    What do you see as the biggest challenges for reducing 
workplace injuries and fatalities? And how could OSHA address 
them under your leadership?
    Mr. Foulke. Senator, I think getting the information and 
the tools to small employers, particularly, who don't have the 
resources or the personnel to have an effective safety and 
health compliance program, I think if OSHA can provide those 
tools and work to get that information to the small 
businesses--because, unfortunately, a lot of small businesses 
as a general rule don't even belong to any type of employer 
organization or association, so they really don't have the 
resources from there. So if somehow OSHA can provide those 
resources and tools to be able to have an effective compliance 
program and to understand really what standards are applicable 
to them, what best practices are out there for their particular 
industry, those are the type of things that I think if we can 
get that information to them, it is going to help them put 
together a comprehensive safety and health program and thus 
help reduce their injury and illness rates and hopefully avoid 
any type of fatalities at their facilities.
    The Chairman. Thank you.
    Back to you, Mr. Stickler. I know that you served as a 
member of a mine rescue team--I just mentioned it a few moments 
ago--and you played a successful central role in the rescue of 
the nine trapped miners at the Quecreek Mine. That was in 
Pennsylvania. With your background, could you share your views 
about how rescue operations are currently conducted and whether 
these practices or procedures should be reviewed or changed?
    Mr. Stickler. My experience for many years in mine rescue 
has given me knowledge about the practice and the process, and 
it is a team effort. It is a team, and I was a Pennsylvania 
State representative on that team in the command center. Also 
in the command center, there is a representative of the mine 
operator. If it is a unionized mine, there will be a 
representative of the employees and a representative of the 
Federal agencies.
    So that is a team that works to plan the strategy for the 
rescue operation. They develop the plans. The plans in the 
cases that I have been involved in are reduced to writing, and 
all of the parties in the command center sign that agreement 
before you move forward.
    But the primary responsibility of the command center is to 
manage the overall rescue activity, and certainly in my 
experience at Quecreek, we had over 700 people involved, 
volunteers mostly, in that rescue activity. And we found it 
best to try not to micromanage but to delegate a lot of things 
and provide input to different experts to the command center 
before we made decisions.
    The Chairman. Thank you. My time has expired.
    Senator Kennedy.
    Senator Kennedy. Why don't we go to Senator Murray, who is 
the ranking member of the subcommittee. I would let her 
question first, and then I would follow when it is my turn.
    Senator Murray. Well, thank you, Mr. Chairman, for having 
this extremely important hearing, and thank you both for being 
here today. We are very interested in your answers. I know I 
will have more questions to submit that I will not be able to 
ask today, but it is terribly important that both of you 
recognize that the lives and the health of thousands and 
thousands and thousands of Americans will be in your hands, and 
the philosophy that you direct these departments and agencies 
with. I certainly think the mining accident made all of us much 
more aware that what we enact in terms of regulations and how 
we enforce those and whether they are voluntary can make the 
difference in whether or not someone's life is saved or not. So 
both of you are potentially heading up agencies that all of us 
are really looking to, to see where they go from here.
    I echo the words of Senator Kennedy, Mr. Stickler, and I 
know you are an honorable man. I think I want to hear from you 
where you are going to fall when it comes down to enforcing 
these regulations. I know West Virginia enacted very quickly a 
package of mine safety reforms, and I want to know from you, 
Are you going to move forward quickly in that direction, or are 
we going to hear more of the voluntary private partnership 
philosophy of they will do the right thing if we just sit back 
and let them? Or do you believe that we should move forward 
quickly with new mine safety provisions?
    Mr. Stickler. Well, I am aware that MSHA has already sent 
out the notice for information regarding technology for mine 
rescue or rescue devices or new technology in general. And if I 
am confirmed, I would look forward to reviewing the record of 
the information that comes in.
    Senator Murray. Do you see yourself coming back and 
encouraging us to move forward quickly on regulations to make 
sure that this does not happen again?
    Mr. Stickler. I think whatever it will take to prevent 
these kind of tragic accidents is what I will pursue, the best 
of my ability to put those in place.
    Senator Murray. We do not know you well. Are you a fast-
acting, emphatic person? Or are you a person who sits back and 
looks at study after study?
    Mr. Stickler. Well, I am an engineer, I am analytical, but 
I don't think I have ever had paralysis from analysis. I try to 
get to the important points in my analysis and make appropriate 
decisions, and certainly the many years that I have been a 
manager requires somebody that can make decisions quickly.
    Senator Murray. You have a lot of background and 
experience. Do we need to update the laws that are out there?
    Mr. Stickler. The Federal mine health and safety laws?
    Senator Murray. Yes.
    Mr. Stickler. I think generally the laws are adequate. 
Since 1977, I have reviewed thousands of mine accidents and 
doing accident data analysis, and in the vast majority of the 
cases, the accidents could have been prevented had the law been 
complied with.
    Senator Murray. Do you think that was the case recently in 
the mining accidents?
    Mr. Stickler. Well, that accident investigation has not 
concluded, and the only information I have about it is what I 
have seen in the news media, and some of that may not be 
correct. But my experience has been that it is very important 
to complete a thorough investigation, collect all of the facts, 
and analyze those to determine the root cause. Once you have 
the root cause identified, then it is not that difficult to 
determine what corrective action should be taken.
    Senator Murray. OK. Thank you. I think that answers my 
question, and I just have a minute left, and I do want to 
direct a question to Mr. Foulke.
    I think you know that when OSHA was chartered, it was to 
assure, insofar as possible, every working man and woman in the 
Nation safe and healthful working conditions. And I just have 
to say that, looking at your resume and knowing that you come 
from a law firm that defends corporate clients against workers, 
causes me concern as to which side you are going to be on. And 
so I will be listening to you, the answers to your questions as 
to whether you are going to be advocating for workers. If you 
could just comment real quickly, and then I have a question on 
asbestos I want to ask.
    Mr. Foulke. Well, Senator Murray, I would say that my 
practice, especially through the Review Commission and then 
since then with my current law firm, you know, has been focused 
on safety and health, and that I have worked with clients not 
only to abate their problems, the citations that they have 
received, but also to work with them to enhance their safety 
and health programs. So I think my----
    Senator Murray. Do you think it should be voluntary, or do 
you think that we need mandates?
    Mr. Foulke. Well, Senator, I think you need both, to tell 
you the truth. The act itself was set up and had a strong 
enforcement provision in the act. And so enforcement clearly is 
a tool that OSHA has to have, utilizing to ensure that workers 
are protected. But, also, we have to have, I think, the 
compliance outreach to assist employers to have programs in 
place, because, really, when you look at it, enforcement in the 
long run normally deals with after-the-fact when there has been 
some violation or some problem has occurred.
    Our goal should be to prevent any injuries and illnesses in 
the future, and so I think you work with the enforcement but 
also have the compliance assistance program to assist in 
getting those programs in place that we never have that 
problem.
    Senator Murray. Mr. Chairman, if you will indulge me just 
one question on asbestos, and I would like to submit my other 
questions for the record. I have done a great deal of work in 
the U.S. Senate on trying to ban the production and importation 
of asbestos in this country and have seen the devastating 
impacts. As we all know, we are now struggling with how to pay 
for it. This country still allows the use of asbestos in the 
industry. Do you think that OSHA should propose a ban on the 
use of asbestos in the United States?
    Mr. Foulke. Well, Senator, I look at it from an OSHA 
perspective. We do have our asbestos standard in place, and I 
think that as long as we are assuring that that standard is 
being enforced, that employees and workers will not be exposed 
to asbestos.
    Senator Murray. So you think it is okay to have it here as 
long as we are just watching our workers?
    Mr. Foulke. It is my understanding that asbestos was no 
longer being utilized.
    Senator Murray. Asbestos is being used in this country 
today.
    Mr. Foulke. Well, on that issue, if the Congress was going 
to be promulgating some type of standard or some type of 
regulation, I would be happy to work with you on that and 
provide input.
    Senator Murray. Well, I will submit a number of questions 
on the record. Asbestos still is imported and used in a number 
of products in this country, including brakes, and we are 
trying to deal with the health outcomes of that exposure. And 
it seems to me the first thing we should do is ban the use of 
it, and I will submit a number of questions for the record on 
that issue, and several others, Mr. Chairman.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Mr. Chairman, thank you for calling this confirmation 
hearing to review the qualifications of the President's 
nominees to head the Mine Safety and Health Administration 
(MSHA) and the Occupational Safety and Health Administration 
(OSHA).
    The recent mining disasters in West Virginia should serve 
as a stark warning to all of us that we need to do more to 
protect our workers on the job. MSHA and OSHA should stand at 
the forefront of efforts to protect workers through new 
technology and new regulations.
    Instead, we have seen this administration's industry-
dominated political appointees remove numerous critical health 
and safety regulations from their safety agenda.
    And today it would appear we are being offered more of the 
same. While I am sure Mr. Stickler and Mr. Foulke are honorable 
men, their professional backgrounds give me pause. I wonder 
whether a coal company executive like Mr. Stickler will 
continue MSHA's policy of entering into voluntary partnerships 
with his former industry colleagues, while failing to move 
forward on important technological and other mine safety 
improvements.
    Under his industry predecessor, MSHA pulled 18 health and 
safety regulations from its agenda, reduced fines, and sought 
budget cuts and staff reductions at the agency. In his 
testimony Mr. Stickler said the Mine Act was working just fine, 
yet we know that over the last 5 years there have been over 400 
fires in underground coal mines, often ignited because of 
accumulations of coal dust. A regulation to reduce coal dust 
was pulled from MSHA's regulatory agenda in 2002.
    For the last several years, Mr. Foulke has worked for 
Jackson-Lewis, which is widely known as one of the most anti-
worker law firms in the country. A lawyer with a background of 
defending his corporate clients against workers who have been 
injured on the job does not strike me as the best hope for 
improving worker safety.
    And it certainly does not square with the original language 
Congress used when chartering OSHA--``to assure so far as 
possible every working man and woman in the Nation safe and 
healthful working conditions.''
    Mr. Chairman these are the only two agencies in the Federal 
Government which are explicitly chartered to protect workers on 
the job. Given their professional backgrounds, I am not at all 
sure these two nominees are the best candidates to fill these 
two critically important jobs. The President should go back to 
the drawing board and nominate individuals with health and 
safety backgrounds that will put the interests of workers first 
and foremost on their agendas.
    We owe that to the families of the miners in West Virginia, 
as well as the thousands of other workers around the country 
who are injured on the job every year.
    The Chairman. Thank you.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman.
    For my edification, if there was an organizational chart of 
OSHA, Mr. Foulke, are you over Mr. Stickler, or are you all 
independent of one another?
    Mr. Foulke. On an organizational chart, we are side by side 
working to protect workers' safety and health.
    Senator Isakson. OK. So you don't have veto power over him?
    Mr. Foulke. No. He looks a little bit bigger than me, too.
    Senator Isakson. OK. Well, then I will direct all these 
questions directly to Mr. Stickler.
    Mr. Stickler, I will reserve judgment on Sago until the 
investigation is done. They say the most dangerous person is 
Washington is a member of the Senate that just got home from a 
fact-finding mission, and I fall in that category. I have 
learned more about mining in the last 2 weeks than I ever 
thought I would know. I traveled with Senator Kennedy, Senator 
Enzi, and Senator Rockefeller to West Virginia. But I will 
reserve my judgment on that incident until all the facts are in 
from the investigation.
    However, I want to talk about things we need to do when 
accidents occur that could save the lives of miners that do not 
exist now in the mines. It became apparently clear to me, in 
talking to the company, the miners in general, and the 
families, that the absence and inability of a mechanism to 
communicate from the surface into the mine at the time of an 
accident is the single most critical deterrent to safe rescue. 
Would you agree with that, or am I off base?
    Mr. Stickler. I agree with that. Yes, absolutely.
    Senator Isakson. And then, second, it appeared to me that 
if you had that communication and that ability reliably, the 
second most important thing would be to be able to have some 
accessibility to oxygen beyond the 1 hour that the miners carry 
with them. Would that be kind of second?
    Mr. Stickler. Yes, Senator. I have been involved in 
developing emergency plans for mines, and in those plans of the 
mines that I operated, I include spare units at the worksite as 
well as positioned units strategically along the escape route 
coming out of the mine. So, absolutely, you need enough oxygen 
for each miner to assure that he will have a supply to come 
from his work area to the surface.
    Senator Isakson. I will be conducting, along with Senator 
Murray, a hearing on the 15th--really, a roundtable on the 15th 
of February regarding new technologies or the need for new 
technologies to deal with mine accidents, to deal with mining 
in general, mine accidents in particular, and we will be 
looking for those things from around the world, whether it is 
whatever they use in New Zealand or Canada or in some mines in 
the United States. But one thing I have become aware of, it 
appears that there has not been a catalyst for innovation, 
either monetarily or from miners or from mine owners or from 
MSHA. So I have a question for you.
    Do you think MSHA, as well as being a regulatory and 
enforcement agency, could find a way to be a catalyst for 
invention--and you are an engineer--for example, in the 
communication device in some way?
    Mr. Stickler. Well, I believe so, and if I am confirmed, I 
would work very closely with NIOSH. During my 6 years that I 
served as Director of Pennsylvania Bureau of Deep Mine Safety, 
I worked with NIOSH on a lot of their research, particularly in 
the area of mine rescue. Pennsylvania mine rescue teams were 
trained at NIOSH facilities, the underground coal mine research 
in Pittsburgh and the stone mine down in Lake Lynn in the 
southwestern part of Pennsylvania. And as an exchange, we 
tested the latest technology and infrared heat-sensing 
equipment and communication systems and so forth and so on. And 
I would look forward to doing everything I can to advance 
technology. I think technology has done more to improve health 
and safety during my career than any other area.
    Senator Isakson. Well, I appreciate your answer because, as 
I said, I am going to hold my comments on the accident at Sago 
until the investigation is done. I think that is really the way 
you ought to do that. However, I sat with Senator Kennedy and 
Senator Enzi and Senator Rockefeller with those families. I 
noticed in your testimony you had a sentence in there that you 
yourself have been one to have to visit with families that had 
losses in the mines. And based on that day of testimony and 
talking to everybody, it was patently clear to me that the lack 
or the absence of innovation in communication and in oxygen 
accessibility is the single biggest difficulty in the case of 
the Sago Mine, one or both of those could have in combination 
allowed us to save those miners.
    I sat next to a young lady who handed me this picture. This 
is a picture of Junior Hamner, who died on January 2nd in that 
mine. He is her father. This is a picture of him and the eight-
point buck that he shot the day after Christmas in West 
Virginia. And that young lady told me, she said, ``Mr. Isakson, 
just promise me this: that my Daddy's legacy will be that 
others won't die in the mines.''
    I think every one of us on this committee wants to work 
with you, and in turn, OSHA and the Secretary, to do everything 
we can to do that. And I have a suspicion that the most 
important thing we can do is be a catalyst to make the 
innovation that lacks today accelerate at such a rate that 
miners in mines in this country, and, for that matter, around 
the world, have an ability to communicate with the surface 
reliably that does not depend on wires or hardlines; and, 
second, had accessibility to oxygen so that if there is an 
accident and they reach it with their 1-hour device, they can 
maintain themselves until CO2 levels, methane 
levels, or other levels are down so the rescue teams can go in.
    And if you are confirmed--and I am delighted that you have 
the breadth of experience you do in mining--it is my sincere 
hope you will work with us to be a catalytic agency for that 
type of completion of the technology that we need so this does 
not ever happen again.
    And that was not a question, Mr. Chairman, but that was a 
statement, and I appreciate your time.
    [The prepared statement of Senator Isakson follows:]

                 Prepared Statement of Senator Isakson

    I am pleased to welcome Mr. Richard Stickler and Mr. Edwin 
Foulke to today's hearing. As Chairman of the Subcommittee on 
Employment and Workplace Safety, I am eager to work with both 
of you upon your confirmations.
    I come to this hearing today with a heavy heart. It was 
just a few days ago that I joined the chairman and ranking 
member of this committee, as well as Senator Jay Rockefeller on 
a visit to Upshur County, West Virginia. It was, to say the 
very least, one of the most moving experiences of my life. 
Before we left, Senator Rockefeller, my good friend and 
colleague, told me I'd feel right at home with the people of 
his State. Indeed I did. I was honored and humbled to join my 
colleagues in speaking to the devoted families of the miners 
who perished in the Sago Mine tragedy. We listened intently for 
over 2 hours while these brave men and women shared their pain, 
their grief, and their frustration. But they also shared a 
hope. Their hope was that future miners will never suffer like 
their loved ones did, sitting in the dark, slowly suffocating 
to death on poisonous gases. One family even gave me a picture 
of one of the deceased miners, which I will keep with me as a 
constant reminder of our mission to ensure miners' safety.
    The trip, however, was every bit as educational as it was 
emotional. We heard of the need for better communications 
between miners and those on the surface. We learned of the 
possibility that technology will allow miners to carry more 
oxygen in case of emergency. We discussed ways that mine rescue 
teams could be on the scene at mine emergencies more 
expediently.
    All of these are important points of discussion, and I plan 
to work with the chairman, ranking member and all the members 
of this committee on ways we can be a catalyst for positive 
change in the area of mine safety.
    Mr. Stickler comes to us with a long and distinguished 
history of working to ensure the safety of mines. For over 30 
years, Mr. Stickler has worked deep in the mines of Appalachia. 
During that time, he has held a number of positions including 
manager, superintendent and shift foreman. More recently, he 
spent 6 years as director of Pennsylvania's Bureau of Deep Mine 
Safety. Note I said he worked in the mines . . . not in an 
office in New York or Philadelphia. Mr. Stickler is a man who 
for most of his adult life has wiped the coal dust off his 
boots every night. This is the man we need leading the Mine 
Safety and Health Administration.
    If and when confirmed, Mr. Stickler will head an active, 
effective, and well-funded Federal agency. Total MSHA funding 
under this administration is consistently higher than it was 
under the previous administration. During the fiscal years 
1996-2000, MSHA funding averaged about $208 million. The Bush 
administration, working closely with Congress, has increased 
that figure to an average of $266 million a year during fiscal 
years 2001-06.
    Moreover, funding for coal mine administration alone is up 
to an average of $115 million per fiscal year under the Bush 
administration versus $107 million per fiscal year under the 
previous administration.
    Importantly, the number and nature of mines is constantly 
changing, and MSHA must reflect this reality by continually 
shifting funds between coal, metal, and non-metal mines. Last 
year's figure of $140,000 MSHA-spent dollars per coal mine is 
by far the highest in history. The same figure for 1996 is 
$72,000, revealing that MSHA spending per coal mine has nearly 
doubled over the past 10 years.
    Enforcement of mine safety standards in this administration 
is strong and getting stronger. In 2004, the last year of 
available statistics, MSHA imposed $8,453 of fines per mine, 
compared to only $5,649 at the end of the previous 
administration. Today, an MSHA enforcement staffer oversees 
only 3.39 mines, compared to an average of 3.8 mines during the 
previous administration. Clearly, this agency is active and 
fully engaged in the ongoing struggle to make our mines safe.
    This commitment of Federal resources, combined with 
intensive efforts by the mining industry to continually enhance 
mine safety, resulted in 2005 being the safest year in the 
history of American coal mining. Since the turn of the century, 
coal mine fatalities have dropped 42 percent, and the number of 
coal mine injuries has dropped 22 percent. Over the same time 
period, fatalities at all mines, including metal and non-metal 
mines, has dropped 33 percent, with injuries dropping 25 
percent.
    Just as we must examine MSHA funding and MSHA enforcement 
in terms of per mine expenditures, a more true analysis of mine 
safety requires noting the number of fatalities and injuries 
per mine. These data, too, are promising. Since 2001, the 
number of coal mine fatalities per 1,000 mines has been nearly 
cut in half, from 19.6 to 11.1. Rather than deliberating over 
how many office staff MSHA should have here in Washington, it 
is imperative we focus on these real safety results that are so 
crucial to miners' health and well-being.
    Obviously, however, the recent tragedies remind us that 
there is never enough that Congress, MSHA, or the mining 
industry can do to ensure the safety of miners. I have met with 
Mr. Stickler, and I know he understands this. I congratulate 
him on his nomination and look forward to working with him in 
ensuring the safety of miners nationwide.

    The Chairman. Thank you.
    Senator Kennedy.
    Senator Kennedy. Thank you. Thank you very much. I have a 
number of questions. We will try and get through them here.
    First of all, even though it isn't required under MSHA, can 
you give us assurance that you will talk to these families in 
some setting?
    Mr. Stickler. Yes, and I know that MSHA has done that in 
the past. And if I am confirmed, at some point, probably at the 
end of the investigation, I would sit down and review the 
report with them and give them the opportunity to----
    Senator Kennedy. Well, I appreciate at the end of the 
investigation. I think it might be useful at some time--it is 
not required in the regulations, but it seems to me in the 
investigation that it would be useful to sit down with those 
family members in some kind of setting to get their 
recommendations.
    Mr. Stickler. I understand that MSHA has made a commitment 
to a public hearing.
    Senator Kennedy. Well, I will get the details of that, but 
it would be useful and helpful if you would give us the 
assurance that you will sit down with them some time before the 
end.
    Mr. Stickler. Right. I would.
    Senator Kennedy. You are aware that personal emergency 
devices--you know, this is not a new issue, this issue of 
communications. In the 1977 act, there is a whole provision on 
communications, recognizing the need of it, and these personal 
emergency devices, miners in Australia have developed them, the 
PEDs that miners wear attached to their belt. It allows people 
outside the mine to send messages to miners deep underground. 
The lightweight device has been used in mines in other 
countries and is available in the United States, but only a 
handful of companies use them.
    This is a grave disappointment given that we know they can 
save lives. PEDs helped alert 46 miners in Willow Creek Mine in 
Utah to evacuate before a fire engulfed their mine in 1998.
    Were you aware of these devices when you were head of the 
Pennsylvania Bureau of Deep Mine Safety, and did you promote 
their use?
    Mr. Stickler. Yes, I was aware of those, and I was involved 
in some testing that was done at the Lake Lynn facility. In 
conjunction with NIOSH engineers, the Bureau of Deep Mine 
Safety participated in that testing. So I was aware of the 
technology.
    Senator Kennedy. How many mines after--did you implement 
that?
    Mr. Stickler. Well, unfortunately, Senator, in the State of 
Pennsylvania, the Bureau of Deep Mine Safety has no rulemaking 
or promulgation of rules, no authority in that area. And the 
only way that I could get new technology into the mines would 
be as part of a plan. If an operator was submitting a plan for 
perhaps a waiver or variance, then I could improve technology 
in those requirements. But as far as making rules, I had no 
authority to do that.
    Senator Kennedy. Well, given where the 1977 act's Section 
316, talking about the areas of safety, which are completely 
discretionary with the Secretary, it talks about telephone-
equal two-way communications approved by the Secretary shall be 
provided between surface and each landing, main shaft, slope, 
surfaces of any coal mine more than 100 feet down from the 
portal.
    It is difficult for me to understand. You had the hearings 
then. You know what was going on in the Willow Creek Mine in 
Utah. You had the hearings then.
    Let me move into another area, that is, with regards to the 
emergency rescue chambers. All of us want to wait to see what 
the final results are going to be, but here it is in the 1977 
act: The Secretary or an authorized representative of the 
Secretary may prescribe to any coal mine that rescue chambers, 
properly sealed, be erected in the mine to which persons may go 
in an emergency. This is 1977. Canada implemented it, saving 
people's lives.
    Did you implement or try to get anything like that 
implemented while you were the head of that division in 
Pennsylvania?
    Mr. Stickler. I operated under the Pennsylvania Bituminous 
Coal Mine Act, which is totally different than the Federal Mine 
Health and Safety Act.
    Senator Kennedy. Would you implement--well, you have 
studied this act. Don't you think we could go ahead with this? 
You are up to be the head of this. Wouldn't you believe that 
given the act itself you would want to move ahead with that?
    Mr. Stickler. Yes, I think there are some mines that the 
shelter areas, particularly large mines--I have worked in a 
large underground mine that had an underground shelter with a 
bore hole going to the surface so that compressed air could be 
pumped into that shelter area and protect the miners in case 
there was a fire or explosion. So I am aware of that, and there 
are applications that I think it would be applicable.
    Senator Kennedy. Well, there is a sense of urgency, Mr. 
Stickler. You know, we talk about how we have to look over all 
new kinds of technologies and evaluate them, when we have some 
that have been tried and tested and have worked and saved 
people's lives. We want to know if you are going to be 
implementing this law, when you have these clear provisions, 
whether you are going to make sure that they do it.
    Let me go into this other area, and that is mine rescue 
teams. The act says that within 180 days after the effective 
date of the Mine Safety Act of 1977, the Secretary shall 
publish regulations which will provide that mine rescue teams 
shall be available for rescue and recovery in each underground 
coal or other mine in the event of an emergency. That is in the 
law. That is in the law now.
    You recognized this problem with mine safety in your own 
statement. I have your statement here, Commonwealth of 
Pennsylvania, talking about membership on mine rescue teams, a 
very dynamic process, many experienced with mine rescues, 
retiring, no longer participating. We understand the importance 
of mine rescue teams. It is in the 1977 law. This is the job 
you want, you are going to. Are you giving us the assurance 
that with that kind of language and authority in there you are 
going to make sure that every mine is going to have a mine 
rescue team?
    Mr. Stickler. Well, what I did in the State of 
Pennsylvania----
    Senator Kennedy. Would you now, if you were approved, give 
us the assurance that you will follow this and have every mine 
have a mine rescue team, as provided for in this section of the 
Mine Safety Act?
    Mr. Stickler. No, Senator, I cannot commit to that at this 
time. My experience, I have had coal mines in the State of 
Pennsylvania that only had two employees. Now, how is a coal 
mine with two employees going to have their own mine rescue 
team? What they did----
    Senator Kennedy. Where are you drawing the line then? I 
don't want to spend--I am over my time. Where are you going to 
draw it? At five? Will you give me the assurance that anyone 
who has five, more than five miners?
    Mr. Stickler. I will give you the assurance that, if I am 
confirmed, I will study this and I will make the appropriate 
decision for health and safety.
    Senator Kennedy. Well, given what we have seen in the 
recent times and days, the specific requirements under the law 
and the safety provisions that we have been exposed to, not to 
have someone that is going to chair this with the specific 
kinds of opportunities and requirements under the law and say 
you are going to study it more doesn't give me a great deal of 
satisfaction. I don't know whether I am missing something. I 
don't want to be unfair to you. But this is tough business.
    Mr. Stickler. I think there are other ways to do mine 
rescue other than requiring----
    Senator Kennedy. I am not asking whether you think there 
are others and I hope you will do it. I am just asking whether 
you are going to enforce the law that was passed by the 
Congress and signed by the President.
    Mr. Stickler. Yes, I will enforce----
    Senator Kennedy. Well, that is--and you are going to 
enforce and make sure, as this law says, within 180 days--we 
will give you after 180 days that you are in there, would be a 
lot, we will publish--we will provide mine safety teams 
available for rescue and recovery to each underground coal 
mine. That is what the law says. I want to know if you are 
going to implement it.
    Mr. Stickler. Yes, I will implement the law, and the 
interpretation of ``available'' has been within 2 hours of the 
mine. The rescue station is to be within 2 hours of the mine, 
is what the current regulation is.
    Senator Kennedy. Well, that is not what the law says. Two 
hours I am familiar with, and people down there at Sago think 
that that cost those people's lives on it. And another place is 
where they have mine rescue teams available, they say--and I do 
not want to go through the history through West Virginia. So 
that is something.
    My time--could I just ask one further question, Mr. 
Chairman? This has to do with OSHA. This is the publication of 
standards. One of the standards that we have had, the final 
action, the regulatory standards, the final action expected 
this rule in March. This was a proposed regulation to require 
employers to pay for safety equipment, such as hard hats and 
gloves. Paying for this safety equiptment is particularly hard 
on low-income workers, and we have had a regulation that is 
supposed to be out in March this year. Are you familiar with 
it?
    Mr. Foulke. I am familiar that there is a regulation, 
proposed regulation to have employers pay for personal 
protective equipment, yes, Senator.
    Senator Kennedy. And as I understand it, it is expected due 
in March this year.
    Mr. Foulke. I am not exactly sure of the date, yes.
    Senator Kennedy. Have you got an opinion about that rule or 
regulation?
    Mr. Foulke. Senator, I would say I know this is something 
that has been promulgated before, and actually I think the 
previous rulemaking had actually talked about having PPE paid 
for, and then it was for some reason dropped. I am not sure 
why. But I know it is currently pending. It is one of the 
standards that I am going to be looking at, if confirmed, 
fairly quickly.
    I would note, too, though, that there are a lot of PPE--
there are also a lot of standards that require employers to 
provide PPE, and as part of that providing, it is required to 
be paid for. So at least for certain amounts of personal 
protective equipment, there is a requirement for it to be paid. 
But this would, of course, make it across the board.
    Senator Kennedy. Well, it does not sound like you are quite 
on for that one regulation that I understood was going to be 
put out in March.
    Let me just ask finally, in the safety standards, there are 
safety standards that have been delayed for years, including 
the requirement, as I mentioned, personal protective, 
hexavalent chromium, permissible exposure areas, and on silica. 
And, in fact, the standard on hexavalent chromium is under 
court order to be completed. Some of these standards have 
already gone through the final rulemaking process when 
President Bush took office. That was 5 years ago. We have still 
not seen these vital safety standards completed. I am going to 
write to you and ask you what your position is and how we will 
get those done. And I hope we will get a response.
    Mr. Foulke. I look forward to answering those questions.
    Senator Kennedy. Thank you, and I thank our committee 
members for their indulgence.
    Thank you very much.
    The Chairman. Thank you.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Stickler, based on your testimony and your background, 
you clearly have a good understanding of the technologies that 
are used in other countries, the technologies that have been 
proposed in this country. Give us some of your comments about 
where you think we are going. You heard Mr. Isakson talk to you 
about oxygen and communication, obviously the two big concerns 
and the big needs. What can you tell us?
    Mr. Stickler. Well, like I mentioned earlier, I believe the 
technology did a lot to drive safety during my career, and I 
credit the Congress for that. They implemented laws that 
required technology at the time in some cases that had not even 
been developed. They were stretching the envelope.
    Senator DeWine. But where are we going now, though?
    Mr. Stickler. Well, I think the information that MSHA has 
sent out to gather information about the mine rescue technology 
and technology in general, I think that is a good step. I think 
that needs to be looked at, and from that the game plan would 
be put together to decide how to advance those technologies 
that are available that would help improve mine health and 
safety.
    Senator DeWine. When we had a hearing several weeks ago, 
the person who is acting in the position that you are proposed 
to take could not give any real timeline about when that would 
be. I would hope that if you are confirmed, you would set a 
very firm timeline for that. Do you think you will be able to 
do that?
    Mr. Stickler. If I am confirmed, I will look at the 
schedule and do what I can to move that as quickly as possible.
    Senator DeWine. You know, I think this----
    Mr. Stickler. Once I have established the timeline, which I 
will do, I will get back to you.
    Senator DeWine. All right. Let me ask you a question, Mr. 
Foulke. You heard some comments made by Senator Kennedy in his 
opening comments about the fatality rate in regard to the 
workplace. Are you familiar with the trend line over the last 
few years?
    Mr. Foulke. Yes, Senator. I know that this past year there 
was a slight increase in fatalities.
    Senator DeWine. What do you attribute that to?
    Mr. Foulke. I haven't really reviewed the data, although 
what preliminarily I have understood it to be is that part of 
the situation occurs where there has been a fairly extensive 
increase in construction throughout the country. If I had to 
guess, I would suspect that that is where the additional 
amounts have occurred.
    Senator DeWine. Can you give us any general discussion 
about your philosophy about how you will approach this job?
    Mr. Foulke. One of the things I would really like to do, 
you know, clearly enforcement is an important issue for them, 
and we are going to continue that. But I really want to see 
OSHA become as proactive as possible in order to avoid and 
eliminate injuries, illnesses, and fatalities. Coming in, like 
I say, as I indicated earlier, enforcement is an important 
tool, but a lot of times you are coming in after something has 
happened. So we have to try to figure out how we can prevent 
them from ever happening.
    Obviously, I think the overall goal of the act is to 
eliminate that we would never have to do any enforcement 
because there would be no injuries or illnesses and everyone 
had a safe workplace. But we need to look at how we can move 
forward and trying to make sure that all employees, first of 
all, are in compliance with all the safety and health standards 
that are applicable to their particular business; but, second, 
then, to go the next step further because, to tell you the 
truth, that is just one level. The next level is having a full, 
comprehensive safety and health program. I think that is where 
a lot of the compliance assistance, the VPP, the Voluntary 
Protection Program, all those kind of focus in on trying to 
push employers or help employers go forward where they have the 
best of the best safety program in place. And when you have 
that--and I have worked with a lot of employers in these 
programs--I found out that what they talk about first when they 
have a meeting, if you really want to know when employers are 
really safety and health conscious, it is when they have their 
senior staff meetings and the first thing they talk about is 
safety and health--not productivity, not efficiency. Safety. 
And all that, it is interesting, what flows from it. If we can 
get that mind-set throughout the country for all employers, we 
are going to be successful in dramatically reducing injuries, 
illnesses, and fatalities.
    Senator DeWine. Mr. Stickler, you said in answer to a 
question from this panel that you did not think any additional 
laws were needed. That the laws are complied with is what needs 
to happen. That would indicate that you think clearly sometimes 
these laws are not complied with. Does that mean you believe 
there is some enforcement problem?
    Mr. Stickler. Well, I think there is a compliance problem, 
and I believe that MSHA is----
    Senator DeWine. Well, does that mean there is an 
enforcement problem?
    Mr. Stickler. I wouldn't call it an enforcement problem.
    Senator DeWine. Well, what is the difference?
    Mr. Stickler. Well, compliance is when you have operators--
in some cases, a small percentage of operators will try to 
comply with the law when MSHA is at the job site, but that is 
the only time they try to comply with the law. And that is what 
I mean by a compliance problem. MSHA enforces the law when they 
are at the job site, but naturally, MSHA is only at the job 
site a fraction of the time.
    And don't get me wrong, a large percentage of the operators 
and the people in the industry do try to comply with the law. 
But I am just talking about a small percentage of people that 
they will only comply with the law whenever they are forced to.
    Senator DeWine. My time is up. Thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Thank you. I would now like to submit the 
statement of Senator Harkin for the record.
    [The prepared statement of Senator Harkin follows:]

                  Prepared Statement of Senator Harkin

    Like many Americans, I have been deeply saddened and 
disturbed by the recent tragedies at the Sago and Aracoma mines 
in West Virginia. The deaths of the 14 miners who lost their 
lives in these mines are even more tragic because of the 
possibility that they could have been prevented with some 
simple and long-overdue improvements in mine safety regulations 
and technology.
    These tragedies have raised serious questions about mine 
safety and the effectiveness of the Mine Safety and Health 
Administration (MSHA) under this administration. Recently, MSHA 
has suffered from a 1 percent across-the-board slash in 
funding, resulting in a loss of $2.8 million that could have 
been spent on improved air supply equipment, tracking devices 
which can pinpoint the exact location of trapped miners, and 
personal emergency devices which broadcast text messages to 
miners. MSHA has also recently cut 183 staff positions, 
lessening critical human resources needed to make MSHA more 
effective at identifying mine safety violations and enforcing 
the penalties for those violations.
    This pattern of weakening the Mine Safety and Health 
Administration is counterproductive to making the kind of 
improvements that will enhance and foster greater mine safety.
    I also plan to push for expediting the research into two-
way technology that would allow communication between miners 
and rescuers above ground as well as improved air supply 
technology which would prolong the amount of time miners can be 
in areas where carbon monoxide levels are high. In addition, I 
believe that fines for safety and health violations should be 
increased to a level that will force coal companies to correct 
them quickly.
    Two hundred eight violations in the course of 1 year, at 
least 40 percent of which were for ``serious and substantial'' 
violations, yet the amount of fines levied for these violations 
amounted to only $24,374; at the time of the accident only 
$14,471 had been paid; the largest single fine for any one 
violation was only $440, the specific fine per incidence of 
having combustible materials was only $60--these are the 2005 
numbers on the Sago mine. After a December 2001 accident in an 
Alabama mine, initial fines of $435,000 were reduced to $3,000. 
I'm an advocate for increasing fines to levels that would force 
coal companies to more quickly correct safety and health 
violations and actually deter lax enforcement of mine safety 
regulations.
    In these times, MHSA, too, needs a strong advocate for 
miners and their safety, not an advocate for industry who seeks 
to figure out ways to make enforcement of mine safety and 
health less onerous for the private companies that operate 
mines.
    The problems with lax enforcement of mine safety 
regulations that have recently come to light are by no means 
confined to that segment of occupational safety and health. In 
the larger OSHA context, 12,800 workers are killed or injured 
each day on the job. Yet, there are some in Congress proposing 
legislation that will weaken safety and health protections 
rather than strengthen them. The sponsors and proponents of 
this legislation tout them as common sense fixes that will 
alleviate some regulatory burdens without sacrificing safety 
and health protections. In fact, enforcement under the 
Occupational Safety and Health Act is already much weaker than 
many other safety and health laws, with average penalties of 
less than $900 for serious violations that pose a substantial 
risk of death or serious harm. This is baffling to me. Safe 
working conditions yield fewer injuries and deaths and increase 
productivity. It makes little sense to fight compliance with 
and work against safety regulations. OSHA needs an advocate 
that will have a hallmark of his leadership, aggressive 
outreach and education to businesses about how everyone 
benefits when OSHA regulations are strictly enforced. Again, 
the administration and the Congress need to be working together 
to create and increase conditions that will foster better 
worker safety, public health and environmental safeguards.
    The Chairman.Senator Clinton.
    Senator Clinton. Thank you, Mr. Chairman.
    Mr. Chairman, I would ask unanimous consent to submit for 
the record a letter sent to President Bush from Cecil E. 
Roberts, the International President of the United Mine Workers 
of America.
    The Chairman. Without objection.
    Senator Clinton. Thank you.
    [The letter follows:]
                    United Mine Workers of America,
                                         Fairfax, VA 22031,
                                                  January 24, 2006.
Hon. George W. Bush,
President of the United States of America,
The White House,
1600 Pennsylvania Avenue, N.W.,
Washington, D.C. 20500.

    Dear President Bush: As President of the United Mine Workers of 
America, the largest labor union representing coal miners in this 
country, I respectfully request that you withdraw the pending 
nomination of Richard Stickler to serve as Assistant Secretary of Labor 
for Mine Safety and Health. We urge your immediate attention to this 
matter as the Senate is scheduled to conduct a hearing on this 
nomination next Tuesday, January 31.
    Mr. Stickler spent the overwhelming part of his career as a coal 
mine executive. That is the same background that former Assistant 
Secretary Dave Lauriski brought to the Mine Safety and Health 
Administration (``MSHA''), with disastrous results. The Nation's miners 
cannot tolerate having another mine executive running the Agency 
responsible for protecting their health and safety. For too many years, 
miners have endured an Agency directed by coal mine executives. Too 
often these mining executives place a priority on productivity, but 
fail to focus on miners' health and safety. Too many times MSHA has not 
done all that it is charged with doing to promote miners' health and 
safety.
    In enacting the Mine Act, Congress made it clear that miners' 
health and safety is the preeminent priority of MSHA. Indeed, it 
plainly stated: ``Congress declares that 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.  801.) We take that 
admonition seriously. As the most recent coal tragedies--at the Sago 
Mine and then at the Alma Mine #1--dramatically revealed, coal mining 
remains terribly dangerous. Miners need someone leading MSHA who makes 
their health and safety his number one priority.
    MSHA's internal analyses repeatedly demonstrate that the Agency is 
not doing its job well enough. After explosions at a Jim Walters 
Resources Mine in Alabama killed 13 miners on September 23, 2001, MSHA 
investigated the company, and it investigated itself. It found both had 
failed the miners in numerous ways. Yet, MSHA still has not implemented 
all of its own recommendations. In 2003, the GAO issued a report on 
MSHA's performance. It, too, found deficiencies in MSHA's performance; 
today those same problems persist.
    As a Nation, we cannot watch as more mines explode, burn, and 
flood, as they so recently did at Sago, Jim Walters, Quecreek, and 
Alma. Miners in this country cannot afford to have more mining 
executives responsible for their health and safety. It is for that 
reason that I request that you reconsider the nomination of Richard 
Stickler and withdraw his nomination to be your next Assistant 
Secretary of Labor for Mine Safety and Health.
            Respectfully,
                                          Cecil E. Roberts.
                                 ______
                                 
    Senator Clinton. Mr. Stickler, in this letter from Mr. 
Roberts to the President, he makes the point that in enacting 
the Mine Act, the health and safety of miners was the 
preeminent priority of MSHA. And we have had since 2001 a 
number of problems with the attitude by those responsible for 
enforcing the laws and by the continuing problems that have 
persisted despite interventions and efforts to change 
direction.
    For example, after the explosion at a Jim Walters resources 
mine in Alabama that killed 13 miners on September 23, 2001, 
MSHA investigated the company and investigated itself. It found 
both had failed the miners in numerous ways. Yet MSHA still has 
not implemented all of its own recommendations. In 2003, the 
GAO issued a report on MSHA's performance. It, too, found 
deficiencies in MSHA's performance.
    Today, those same problems persist. In its first few years, 
the Bush administration dropped more than a dozen proposed 
health and safety regulations left over from the Clinton 
administration. In fact, since January 2001, Bush political 
appointees at MSHA have withdrawn or delayed final action on 18 
mine safety rules. Three of these rules may have had the 
potential to speed the rescue and increase the chances of 
survival of the 14 miners killed in the recent West Virginia 
disasters.
    By contrast, on Monday, January 29th, 72 Canadian potash 
miners were rescued from an underground fire after being locked 
down overnight in airtight chambers packed with enough oxygen, 
food, and water for several days. The success of this rescue is 
largely attributed to these chambers, to the extensive training 
of rescue workers, and uninterrupted communications.
    Now, I would assume that based on your own experience--and 
I read your statement--and obviously your personal 
relationships with your own family members and others in the 
mining industry, you care deeply about the health and safety of 
miners. Is that correct?
    Mr. Stickler. I do.
    Senator Clinton. If confirmed for this position, will you 
take the actions that have not been taken since 2001, which 
numerous outside studies as well as GAO study have consistently 
found are necessary to protect the health and safety of miners 
in this country?
    Mr. Stickler. Senator, if I am confirmed, I would do an in-
depth analysis of the regulations or proposed regulations that 
were withdrawn, and if some of those can be advanced and 
justified, then I certainly will do that. I will look at the 
agency itself to make evaluations where I can improve the 
overall efficiency and the operation of the agency. I will 
focus on trying to improve the use of the primary tools--
enforcement, technical support, and education and training.
    Senator Clinton. Well, the problem with that answer, Mr. 
Stickler, which is fine on the face of it, is that we have all 
of this evidence going back now 5 years that changes need to be 
made. So you will be coming into a situation where there is 
congressional study, there is independent study, there is 
reality-based experience where people in the view of many 
experts have lost their lives because of failure to enforce 
existing regulations and improve safety. And it is troubling, I 
think, to a number of us that once again we are going to be 
studying what should be self-evident, that we need improvements 
in order to protect the health and safety of people who work in 
the mines in this country.
    One of the critical duties that you will have is to enforce 
the safety laws, and that includes citing and fining employers 
who fail to comply with those laws. And I am very concerned 
that we have a history under the Bush administration where 
consistently violations have either been overlooked or the 
least amount of fines possible have been imposed.
    Incredibly, the amount of fines for violations averaged 
only $156, and for 89 of the numerous safety violations just in 
2005, the penalties were as low as $60. And I know that the 
problem is that we need an attitude of enforcement, and 
although there is a proposal to increase the fines that are 
available, the problem seems to be that the minimum fines are 
too low and don't do enough to serve as deterrents.
    Will you as Assistant Secretary re-examine the formula, 
particularly in light of the safety violations at the Sago 
Mine?
    Mr. Stickler. Yes, I am concerned about ensuring that the 
penalty fits the severity of the violation, and my opinion is 
that the penalties should be increased.
    Senator Clinton. Mr. Chairman, my time is up. I have a 
number of other questions for both Mr. Stickler and Mr. Foulke. 
If I could just convey those to you by entering them into the 
record and asking that the nominees please respond in writing, 
I would appreciate that.
    The Chairman. Definitely.
    We will leave the record open for 10 days so that people 
can--but I would hope that they would submit the questions 
quickly so that they have a little bit of time to answer them 
so that we can get the answers in the record.
    Senator Clinton. Yes.
    The Chairman. I appreciate all the questions that people 
have asked today, and also, there are several people out in the 
audience that have helped us. Before we went to the Sago Mine, 
we got a series of briefings, those of us that were going down, 
so that we would have a better understanding of what we might 
see and experience down there. And they were of tremendous 
help. They helped us a lot with the questions and also 
understanding some of the answers.
    It is my opinion that there are things that can be done to 
improve the mine safety and that we need to do them, and we 
need to do them as quickly as possible. They are not things 
that will come out of the investigation necessarily. We did 
meet with the families, as we mentioned a number of times, the 
families and the miners and United Mine Workers, and even the 
media, and went and visited the mine site. We were not allowed 
to go in the mine, of course, because that is sealed off 
pending the investigation. But it was like the story of when 
someone is having an intense meeting, and somebody runs through 
and fires a gun a couple of times and runs out, and you start 
comparing notes on what everybody saw. There was quite a 
divergence of information from one meeting to the next or even 
within some of the same meetings.
    So, obviously, we need to have some professionalism that 
can review these things with an eye to the worker and make sure 
that we make these places as safe as possible. The amount of 
coal this country is going to need over the next several 
decades is going to be astonishing. As the amount of oil goes 
down, we will have to have more coal research and find uses for 
this tremendous resource that we have in this country.
    The county that I come from has more BTUs in coal than 
Saudi Arabia has in oil, and that is just in the upper layer. 
We could go down another 400 or 500 feet and hit 3 times as 
much resource. And that could all be used for some of the 
energy needs that we have got, but it has to be done safely 
while we are doing it, and we have to find some new uses for 
it.
    So I will be submitting some questions as well. I have 
quite a few of them, and with some of the testimony, there are 
some things that I do want you to expand on, too. And it is not 
all just on mine safety.
    I started working on OSHA before I ever was introduced to 
some of the complexities of the mine safety laws, and that is 
definitely an area where I also think that we can make some 
very significant progress and protect workers from both 
injuries and deaths. And I intend to do that. I know that you 
have even testified before, and I have appreciated that 
testimony in review of some of the things that I have been 
drafting to see how that fit with your experience. And I will 
have questions for both of you. As I mentioned, the record will 
stay open for another 10 days.
    I would ask unanimous consent that letters of support that 
we have received and will receive become a matter of the record 
as well.
    [The letters follow:]

           American Industrial Hygiene Association,
                                         Fairfax, VA 22031,
                                                   October 3, 2005.
Hon. Michael B. Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: The American Industrial Hygiene Association 
(AIHA), the premier association of occupational and environmental 
health and safety professionals, wishes to take this opportunity to 
comment on the confirmation of a new Assistant Secretary of Labor for 
the Occupational Safety and Health Administration (OSHA). AIHA, through 
its 12,000 members, has more than 60 years of commitment to the 
protection of workers, their community and the environment.
    AIHA is pleased to offer our endorsement of Mr. Edwin Foulke, Jr. 
for the position as Assistant Secretary of Labor for OSHA.
    AIHA believes Mr. Foulke is committed to the proposition that OSHA 
can serve both the objectives of protecting the worker and helping 
businesses to be profitable--that these objectives are complementary. 
We also feel he fully understands the overlap and the interaction 
between the issues of the workplace, the environment and the community.
    Mr. Foulke is well known within the occupational health and safety 
community because of his service on the Occupational Safety and Health 
Review Commission, where he served from 1990 to 1995; and served as 
Chairman of the Commission from 1990 to 1994. We are also aware that 
Mr. Foulke is well respected within the business community and that 
those representing labor feel he has been ``someone who would reach out 
to different groups.''
    His experience with all sectors, including industry and labor, 
provides essential background and understanding of health and safety 
issues from many perspectives. We believe the confirmation of Mr. 
Foulke would assure that worker health and safety would be expertly and 
effectively implemented. We are also pleased to note Mr. Foulke's past 
support for efforts to update Permissible Exposure Limits within OSHA, 
a view shared by both labor and industry.
    The only reservation AIHA might have to this confirmation would be 
the concern that Mr. Foulke does not bring any ``front-line'' health 
and safety experience to the position. As some have said, ``the job of 
OSHA assistant secretary is different from being on the commission.'' 
We are hopeful that Mr. Foulke will reach out to all sectors to better 
understand the role that OSHA must fulfill if we are to reduce 
fatalities, injury and illness in the workplace.
    If AIHA can be of any assistance to you, please do not hesitate to 
contact me.
            Sincerely,
                               Roy M. Buchan, Dr. PH., CIH,
                                                   AIHA, President.
                                              Steven Davis,
                                          AIHA, Executive Director.
                                 ______
                                 
              American Society of Safety Engineers,
                                Des Plaines, IL 60018-2187,
                                                  January 27, 2006.
Hon. Michael B. Enzi,
Chairman,
Committee on Health, Education, Labor and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: The 30,000 member safety, health and 
environmental (SH&E) professionals of the American Society of Safety 
Engineers (ASSE) are committed to making sure that Federal occupational 
safety and health agencies are fully capable of carrying out their 
responsibilities for protecting this Nation's workers from occupational 
safety and health risks. When the Occupational Safety and Health 
Administration (OSHA) and the Mine Safety and Health Administration 
(MSHA) are given the necessary resources and appropriate leadership to 
carry out their responsibilities, our members are better able to do 
their work in protecting workers and, most importantly, workers better 
receive the protections they deserve.
    In August last year, ASSE shared with the President, you and other 
Congressional leaders our concern that the Assistant Secretary of Labor 
positions at both OSHA and MSHA had remained unfilled for nearly 8 
months. Both agencies are staffed with capable and dedicated 
professionals. But, in any organization, the people who carry out day-
to-day responsibilities deserve to know the future direction that only 
affirmed leadership can provide.
    Community seeks agreement in direction. MSHA needs to address 
asbestos in mining, substance abuse prevention, and diesel particulate 
matter in mines. OSHA also needs to provide leadership in helping this 
Nation's businesses maintain their competitiveness by moving forward as 
soon as possible on global harmonization of hazard communications and 
by working now on the protections that may be needed to address risks 
from nanotechnology, which offers a unique opportunity to address risks 
before they happen.
    The leadership opportunities for Mr. Foulke and Mr. Stickler are 
many. As they begin to address those opportunities, we urge them to 
keep in mind that ASSE's 30,000 members have expertise and experience 
in every industry and across the spectrum of safety and health issues 
that has already proven useful in our alliance relationships with OSHA 
and MSHA.
    If ASSE can be of any assistance to the committee as it considers 
these nominations, we ask that you would call on us. Our hope is that 
the committee's deliberations will be thoughtful but speedy given the 
length of time the leadership positions at these vitally important 
agencies have remained unfilled.
            Sincerely,
                                  Jack H. Dobson, Jr., CSP,
                                                         President.
                                 ______
                                 
                                        BE&K, INC.,
                                      Birmingham, AL 35243,
                                                  October 31, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Senator Enzi: We heartily endorse the nomination of Edwin G. 
Foulke, Jr. as the Assistant Secretrary of Labor for Occupational 
Safety and Health.
    Our endorsement of Mr. Foulke, the former Chairman of the 
Occupational Safety and Health Review Commission (OSHRC), and partner 
in the law firm of Jackson Lewis LLP has been carefully considered and 
is not lightly given. Mr. Foulke has been known to us for 7 years and 
has worked closely with BE&K to resolve key safety and health issues. 
We are very aware of his active involvement in occupational safety and 
health matters. His reputation is impeccable.
    We firmly believe that Mr. Foulke's lifelong commitment to the 
safety and health of workers, both in construction and general 
industry, along with his extensive background in the legal profession, 
successful policy reviews and a history of achievement in several 
leadership positions makes him the ideal head of OSHA.
    BE&K recognizes the need for strong leadership in an area that is 
critical to the safety and well being of employees. Mr. Foulke has 
proven to us that he can take the right course of action, one that is 
fair to both workers and management.
    We fully support Edwin G. Foulke, Jr. for the position of Assistant 
Secretary of Labor for Occupational Safety and Health and feel strongly 
that he will bring effective leadership to the Occupational Safety and 
Health Administration.
            Sincerely,
                                             Mike Goodrich,
                                            BE&K, Chairman and CEO.
                                 ______
                                 
          Greater Philadelphia Chamber of Commerce,
                               Philadelphia, PA 19102-3866,
                                                  January 30, 2006.
Hon. Elaine L. Chao,
Secretary of Labor,
U.S. Department of Labor,
Washington, D.C. 20210.
    Dear Madam Secretary: I am delighted to write to you and share my 
unequivocal and enthusiastic endorsement of Richard Stickler and his 
nomination as U.S. Assistant Secretary of Labor for Mine Safety and 
Health. As we all know, the recent mining tragedies in West Virginia 
underscore the need to continue efforts to increase the safety of our 
miners.
    It is my belief the mining community has a tremendous ally in Mr. 
Stickler. During my time as governor of the Commonwealth of 
Pennsylvania, I was fortunate to have him by my side during a 77-hour 
rescue effort of nine miners trapped in Quecreek, Somerset County. His 
experience and tremendous understanding of the subtleties involved with 
working underground made him a valuable advisor to me.
    Many have called the events at Quecreek a miracle, but that miracle 
was made possible through the work of our team of mine experts. Without 
hesitation, I would place Mr. Stickler at the top of that figurative 
list of experts. At several points during the rescue, he provided the 
keen insight we needed to make life-saving decisions that were critical 
to the success of our rescue operation.
    Indeed, my administration and all Pennsylvania miners, were 
fortunate to have his services. For that reason, and many others, I 
believe Richard Stickler would be an excellent addition to your team of 
leaders and Government executives.
    In closing, if questions later arise, please feel free to contact 
me. Thank you.
            Sincerely,
                                         Mark S. Schweiker,
                                                   President & CEO.
                                 ______
                                 
                               Garber & Associates,
                                        Lansdale, PA 19446,
                                                 November 10, 2005.
Hon. Mike B. Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: As a practicing safety professional with over 
15 years of field experience, I wanted to take the opportunity to 
comment on President Bush's nomination of Mr. Edwin G. Foulke, Jr. for 
the position of Assistant Secretary of Labor for the Occupational 
Safety and Health Administration. My career has been spent actively 
working on the front lines of business and industry with the chief aim 
to ensure that workers are adequately protected in the workplace from 
injuries and illnesses through effective adherence to applicable OSHA 
regulations, safety and health management systems, and by counseling 
organizations on the importance of safety in the workplace toward sound 
business practices. It is this experience that permits me to make many 
observations as they relate to the importance of OSHA and its leader.
    I support the nomination of Mr. Edwin G. Foulke, Jr. for the 
position of Assistant Secretary of Labor for the Occupational Safety 
and Health Administration. In his service on the Occupational Safety 
and Health Review Commission (OSHRC), Mr. Foulke demonstrated a 
balanced approach toward various industry groups in his review of the 
safety and health issues set before him. Mr. Foulke is well respected 
in his profession and for his dedication toward advancing the mission 
of OSHA. He brings a wealth of experience and will do what is right. My 
professional practice has included involvement with OSHA on many 
occasions and I believe that Mr. Foulke would be an asset to the 
Occupational Safety and Health Administration.
    In my work with the Society for Human Resource Management, it has 
been my privilege to serve with Mr. Foulke on a National Workplace 
Health, Safety and Security Committee and more recently on the 
Workplace Health, Safety and Security Expertise Panel. It has been 
through my experience in working with Mr. Foulke that I have come to 
further respect his knowledge and understanding of the front line 
safety and health issues facing American workers and American business. 
If there is any one significant matter that I can convey to you leading 
into the confirmation process, it is that I firmly believe that Mr. 
Foulke clearly understands front line safety and health, an issue that 
many have criticized Mr. Foulke for lacking. I can tell you from 
working with Mr. Foulke that he has a firm understanding of front line 
safety issues and will bring strong leadership toward advancing the 
strategic management plan of OSHA.
    Mr. Foulke will make an excellent Assistant Secretary of Labor for 
the Occupational Safety and Health Administration. He is well qualified 
for the position and will serve to protect American workers and 
American business.
    If I can be of assistance to you, please do not hesitate to call.
            Sincerely,
                        John E. Garber, Jr., MS, CSP, SPHR,
                                    Garber & Associates, President.
                                 ______
                                 
             Society For Human Resource Management,
                                 Alexandria, VA 22314-3499,
                                                 November 15, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

Hon. Edward Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
    Dear Chairman Enzi and ranking member Kennedy: The position of 
Assistant Secretary for Occupational Safety and Health Administration 
(OSHA) has been vacant since January 2005. The nomination for this 
position has been pending since September 15, 2005. Given the 
importance of the OSHA to the American workplace, as well as the health 
and safety issues resulting from Hurricane Katrina, the Society for 
Human Resource Management (SHRM) requests that the committee act 
immediately to fill the position before Congress adjourns for this 
session.
    Edwin G. Foulke, Jr., the nominee for this position, has a very 
accomplished background in occupational health and safety issues. Mr. 
Foulke has over 20 years of experience in OSHA matters, including 
inspections, compliance strategies, and rulemaking. Mr. Foulke has also 
served previously as Chairman of the Occupational Safety and Health 
Review Commission, where he decided hundreds of cases during a period 
of critical debate over OSHA's role in protecting the American 
workplace. SHRM believes that Mr. Foulke would make an excellent 
Assistant Secretary for OSHA, and fully supports his confirmation.
    SHRM is the world's largest association devoted to human resource 
management. Representing more than 200,000 individual members, the 
Society's mission is both to serve human resource management 
professionals and to advance the profession. Founded in 1948, SHRM 
currently has more than 550 affiliated chapters and members in more 
than 100 countries. Because HR professionals play a critical role in 
ensuring safe workplaces, SHRM has a strong interest in seeing that 
this position is filled in an expeditious manner.
            Sincerely,
                                  Susan R. Meisinger, SPHR,
                              President and Chief Executive Oficer.
                                 ______
                                 
                                      Lending Tree,
                                       Charlotte, NC 28277,
                                                 November 28, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: Please accept this letter as my support for 
Edwin G. Foulke, Jr. as a nominee for the Assistant Secretary of Labor 
for Occupational Safety and Health.
    As the Chair of the Society for Human Resource Management (SHRM), 
the world's largest professional human resources organization, 
representing over 205,000 members in over 100 countries, I can tell you 
Mr. Foulke has earned the respect and trust of SHRM members throughout 
the country. Not only is he a knowledgeable, hardworking, and 
insightful practitioner, but he has exceptional leadership skills. Most 
importantly, he is a fair and just professional that is steadfast in 
protecting the safety and well-being of workers.
    Edwin G. Foulke, Jr. believes in the mission of the Agency to 
assure the safety and health of America's workers by setting and 
enforcing standards; providing training, outreach, and education; 
establishing partnerships; and encouraging continual improvement in 
workplace safety and health.
    In the event you would like to discuss my support of Mr. Foulke's 
candidacy for Assistant Secretary of Labor for Occupational Safety and 
Health, please contact me.
    Thanks in advance for your time and consideration.
            Sincerely,
                         Johnny C. Taylor, Jr., J.D., SPHR,
                            Senior Vice President, Human Resources.
                                 ______
                                 
                             Mrs. Cathy D. Mueller,
                                    Edwardsville, IL 62025,
                                                  November 7, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: It is with high honor and respect that I am 
writing you recommending Mr. Edwin G. Foulke, Jr. for the position of 
Assistant Secretary of Labor--OSHA.
    Actively working as a manager in the profession of Safety and 
Health for nearly 30 years in the aerospace, primary metals 
manufacturing, and insurance sectors, I am familiar with OSHA, its 
history, and requirements. Mr. Foulke is an excellent choice to provide 
leadership and direction to the Agency.
    Knowing Mr. Foulke for almost 10 years in a volunteer capacity as a 
member and past chair of the Workplace Health, Safety, and Security 
Committee for the Society for Human Resource Management (SHRM) has been 
my good fortune. Mr. Foulke's leadership ability and his first hand 
knowledge of OSHA and the Occupational Safety and Health Review 
Commission (OSHRC) have been invaluable to our group's mission.
    My interactions with Mr. Foulke, in both committee and professional 
capacities, have been outstanding. I have found him to be insightful in 
his understanding of OSHA and OSHRC, and value his legal opinions. His 
great knowledge of OSHA and legal issues will be crucial to the 
operation of the Agency.
    I feel Mr. Foulke will make decisions that are in the best interest 
of the safety and health of our Nations workforce.
    Thank you, Senator Enzi, for allowing me the opportunity to provide 
a recommendation for Mr. Foulke.
            Sincerely,
                                          Cathy D. Mueller.
                                 ______
                                 
          National Roofing Contractors Association,
                                        Rosemont, IL 60018,
                                                 November 10, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
    Dear Chairman Enzi: On behalf of the National Roofing Contractors 
Association (NRCA), it is my pleasure to write to you in support of the 
nomination of Edwin G. Foulke, Jr. for Assistant Secretary of Labor, 
Occupational Safety and Health Administration (OSHA). We have known Mr. 
Foulke for 14 years and he will do an excellent job reaching out to all 
stakeholders to seek improvements in workplace safety.
    We first met Mr. Foulke when he was Chairman of the Occupational 
Safety and Health Review Commission (OSHRC) in the administration of 
former President George Herbert Walker Bush. He spoke at our national 
convention in 1992 and patiently handled many complicated questions 
covering a broad range of safety issues.
    Mr. Foulke is currently with the law firm of Jackson Lewis LLP and 
we have continued to work together as members of the Labor Relations 
Committee of the U.S. Chamber of Commerce. Mr. Foulke is a dedicated 
professional who co-chairs his firm's OSHA Practice Group and has 
testified before Congress on behalf of the Chamber.
    NRCA is an association of roofing, roof deck and waterproofing 
contractors. Founded in 1886, it is one of the oldest associations in 
the construction industry with 5,000 members throughout all 50 states. 
We urge your support for Mr. Foulke's confirmation.
            Sincerely,
                                      William A. Good, CAE,
                                          Executive Vice President.
                                 ______
                                 
                          Schottenstein Zox & Dunn,
                                        Columbus, OH 43215,
                                                  October 28, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: I have had the pleasure of knowing and working 
with Edwin G. Foulke, Jr. since his term as Chairman of the 
Occupational Safety and Health Review Commission. During his tenure at 
OSHRC, I served as the American Bar Association's Management 
chairperson of its Occupational Safety and Health Law Committee. In 
that role, I worked with Mr. Foulke and my union-side co-chair, Don 
Elisberg, in assisting in Mr. Foulke's organization of annual 
conferences for Review Commission judges that presented balanced views 
to the judges on developments in the law. Mr. Foulke's tenure as Review 
Commission chairperson demonstrated his significant administrative 
abilities as well as his knowledge of the law of occupational safety 
and health. Since his service, I have followed his professional 
representation of clients before OSHA and OSHRC.
    I completely support Mr. Foulke's nomination to head the 
Occupational Safety and Health Administration as the Assistant 
Secretary of Labor. He will, I am certain, provide excellent leadership 
and service in this role. Should you or your staff have any inquiries 
concerning my support, please do not hesitate to contact me.
            Very truly yours,
                                             Felix C. Wade.
                                 ______
                                 
                    Tree Care Industry Association,
                                      Manchester, NH 03103,
                                                  February 9, 2006.
Hon. Michael B. Enzi,
Chairman,
Committee Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

    Dear Chairman Enzi: I write on behalf of the Tree Care Industry 
Association (TCIA, formerly the National Arborist Association) in 
support of Edwin G. Foulke's nomination to the position of Assistant 
Secretary of Labor for the Occupational Safety and Health 
Administration and to urge that the committee move expeditiously to 
schedule a vote on his nomination. I also would like to take this 
opportunity to thank the chairman for holding a hearing on Mr. Foulke's 
nomination and for all important work on safety and health issues you 
have done in your current position as well as previous role as chair of 
the Subcommittee on Employment and Workplace Safety.
    TCIA is a 68 year-old trade association representing more than 
2,000 commercial tree care companies and their affiliates. Our 
membership is comprised of arborists engaged in residential and 
commercial tree trimming, as well as line clearance tree trimmers, who 
trim trees proximate to overhead wires for their utility company 
customers.
    TCIA is the leading advocate for safety in the industry and has a 
history of working cooperatively with OSHA, its State counterparts and 
other stakeholders on developing standards and educational programs 
that improve safety for arborists. In fact, we recently instituted the 
industry's first safety certification program--The Certified Treecare 
Safety Professional (CTSP).
    We strongly support the President's nomination of Mr. Foulke to 
head OSHA. His record on the Occupational Health and Safety Review 
Commission as well as his long history assisting companies in 
developing safety programs as a private attorney speaks to his 
dedication to safety and understanding of the challenges in 
implementing effective workplace programs. We look forward to working 
with Mr. Foulke if he is confirmed and ask the committee to move 
quickly to schedule a vote and complete the next step in filling this 
critical position.
    Again, thank you for all your work on these important issues.
            Respectfully,
                                        Cynthia Mills, CAE,
                                                         President.
                                 ______
                                 
    The Chairman. With that, I will adjourn the hearing.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

     Response to Questions of Senator Enzi by Edwin G. Foulke, Jr.
    Question 1. You have been practicing labor law for over 20 years, 
almost as long as OSHA has been in existence. Based on your experience, 
what are the most effective ways OSHA and its State plan partners can 
increase workplace safety?
    Answer 1. Outreach and assistance to small employers is critical if 
there is to be substantial improvement in worker safety and health in 
America. Having worked with many small family operated businesses, I 
know their desire to have safe workplaces but the same solutions will 
not work for all types and sizes of employers. Outreach and technical 
assistance, however, must be part of a comprehensive program that 
includes strong enforcement.

    Question 2. You were chairman of the Occupational Safety and Health 
Commission, which adjudicated appeals to OSHA enforcement actions, for 
5 years, from 1990 to 1995. What did you learn from that experience and 
how will it inform your leadership of OSHA?
    Answer 2. At the Review Commission, I found that the more input I 
received, the better the decisions I made. In addition, it is important 
to have measurements in place to determine if progress is being made 
towards the Agency's goals. To do this, I will look to set goals for 
programs or initiatives that not only are achievable, but also are 
measured accurately. I also learned that there are at least two sides 
to every issue and that the law must be applied consistently and fairly 
in all cases.

    Question 3. OSHA has a very successful track record with 
cooperative programs. The Voluntary Protection Program (VPP) is OSHA's 
most successful partnership program. VPP members have injury and 
illness rates which are more than 50 percent below the averages for 
their industries. But most of the businesses that are able to 
participate in VPP are larger businesses. How can we spread the 
benefits of the VPP program to smaller businesses that care just as 
much about their employees' safety?
    Answer 3. I concur with your sense that VPP has been highly 
beneficial to participating business and their employees. VPP employers 
have been proactive about workplace safety plans and workers have 
benefited. If I am confirmed, I will look for opportunities to allow 
small businesses to avail themselves of the benefits of cooperative 
programs.

    Question 4. OSHA has a standard requiring clear chemical hazard 
communication to employees so that they can protect themselves from 
accidents and mitigate damage if an accident occurs. I have learned 
both from personal experience and through my prior tenure as 
subcommittee chairman for the Employment and Workplace Safety that this 
information is not presented in a way that employees can quickly and 
easily understand. In fact, I think the problem is so serious that 
Senator Murray and I, along with Senators Gregg, Sessions, Isakson, and 
Burr, have introduced legislation requiring OSHA to publish model 
Material Safety Data Sheets on their Web site for employers to follow. 
Do you believe making this information available should be a top 
priority for OSHA?
    Answer 4. I would certainly look at the current MSDS requirements 
to see if they could be streamlined. It is my understanding that OSHA 
is currently working on 10 model MSDSs. If I am confirmed and if 
Congress directs OSHA to create model MSDSs, I will do my utmost to 
ensure that the agency complies with Congress' direction.

    Question 5. Drug and alcohol testing for employees working in 
safety-sensitive transportation positions is currently required by 
Federal law. With that exception, whether or not to test employees is 
usually a matter left to the employer, who is well-positioned to 
determine the risk and, in fact, bears the cost of accidents to 
employees and others that may be injured. Do you believe that an 
employer should be allowed to test employees for drug and alcohol use?
    Answer 5. Yes, to the extent it is done in a fair and non-
discriminatory manner.

    Question 6. Do you believe that most employers understand their 
rights under the Occupational Safety and Health Act? If not, would you 
support giving employers the right to request a written statement 
explaining those rights at the closing conference post-inspection? Such 
a statement would include clear and concise information on the results 
of inspection, hazards found, citations issued, explanation of 
employer's right to contest and procedure for doing so, Secretary's 
responsibility to with regard to penalty review, and additional appeal 
options.
    Answer 6. Firm enforcement has to also be fair enforcement. All 
employers should be informed about OSHA procedures. The goals should 
always be compliance with the law and protection for workers. I believe 
good communication with employers and employees advances those goals.

    Question 7. It is my understanding that OSHA's current practice is 
to waive the 15 day deadline for filing a ``notice of contest'' of an 
OSHA citation in cases where an employer missed it by mistake, 
inadvertence, surprise or excusable neglect. Do you support this 
interpretation?
    Answer 7. Yes.
    Response to Questions of Senator Isakson by Edwin G. Foulke, Jr.
    Question 1. As you know, most of today's OSHA regulations were 
written in the early 1970s. In most instances, they are standards that 
were written by various standard setting bodies in the 1960s and were 
incorporated by reference by OSHA during the first several years of the 
administration's existence. It is my understanding that many of the 
1960s standards have been updated by the standards setting bodies to 
reflect either new technology or re-evaluations of risk, but that OSHA 
has not acted to reflect these updates in its own regulations. What 
plan, if any, does OSHA have for updating these regulations?
    Answer 1. I am not aware of any specific plans OSHA has for 
updating consensus standards in the future, though the Agency has done 
some work in this area in the recent past. If confirmed, I will 
carefully examine OSHA regulations based on consensus standards to 
identify where OSHA standards should be brought up to date.

    Question 2. OSHA, under Secretary Henshaw, worked to make employers 
more involved with creating safer management and work practices rather 
than just using the mentality of enforcement and punishment. Do you see 
OSHA continuing that practice under your direction?
    Answer 2. I think outreach, education, and compliance assistance 
should and can work hand-in-glove with strong, fair and effective 
enforcement to improve workplace safety and health. Creating a ``safety 
culture'' in management is one of my goals.

    Question 3. Partnerships and cooperative programs created by OSHA 
are an important part of bringing the employer into the safety 
equation. OSHA had in place a partnership program, the OSHA Strategic 
Partnership Program for Worker Safety & Health (established in 1998) 
that had proven successful by a number of participants and had improved 
the safety performances of those involved. This directive was changed 
in February 2005 and many in the construction industry feel that these 
partnership programs are no longer viable ways to work with OSHA. The 
success of the past OSHA partnerships was based between local area 
offices and the businesses in their jurisdiction. Under the new 
directive, reporting requirements are to the national office which has 
caused excessive amounts of paperwork and an inconsistent level of 
information which in turn has created a disinterest in partnership 
programs. How would you improve the current partnerships and 
cooperative programs within OSHA, specifically for the construction 
industry?
    Answer 3. If I am confirmed, I will examine all of OSHA's 
cooperative programs to ensure their effectiveness and their 
accessibility to all employers.

    Question 4. What role does technical feasibility play in OSHA's 
rulemaking procedures? If stakeholders determine that a particular rule 
is, in their opinion, nearly impossible to implement, how does OSHA 
take that into consideration?
    Answer 4. Under the OSH Act, the agency is required to write and 
enforce regulations that offer the maximum level of protection for 
workers that is technologically and economically feasible. Technical 
and economic feasibility of a proposed rule is one of the issues 
stakeholders are asked to comment on in the rulemaking process, and 
rulemaking agencies are required to carefully analyze these comments in 
considering rulemaking.
    Response to Questions of Senator Kennedy by Edwin G. Foulke, Jr.
    Question 1. As Assistant Secretary, it would be your role to show 
leadership in promoting the development of safety standards. What 
standards do you think most urgently need to be addressed? What 
timeline would you give us for addressing them?
    Answer 1. If confirmed, I will examine OSHA's regulatory program to 
identify opportunities to improve worker protections. I would look at 
the hazards that cause the most injuries. Are injuries occurring 
because standards are unclear or outdated? Are there new industrial 
processes or machines that have caused a significant number of 
injuries? If I find this to be the case, I will work to address the 
situation.

    Question 2. Today's workers are exposed to many chemicals and 
toxins that did not exist when the OSH Act was passed in 1974. Yet 
Permissible Exposure Limits (PELs) have not been updated to reflect 
these developments in technology. You have previously testified before 
the House Education and Workforce Committee about the need to address 
this problem and you proposed different approaches toward setting 
permissible exposure limits, such as establishing a streamlined process 
or new statutory mechanism, or setting up a specialized task force. As 
Assistant Secretary what would you do to set standards for PELs quickly 
and efficiently? What timeline will you set for proposing a new 
process?
    Answer 2. As you know, I have in the past supported efforts to 
update PELs, particularly where there is consensus among stakeholders 
to do so. If I am confirmed, I will carefully examine this issue to 
improve protections for workers.

    Question 3. Our Nation is increasingly concerned with the problem 
of highly transmittable diseases, like Avian Flu. We have already had 
83 deaths and 153 cases in Southeast and Central Asia. As we saw with 
SARS, healthcare workers are on the front lines in any infectious 
outbreak. Worker protection needs to be part of any coordinated 
response to a pandemic outbreak. Yet thus far the Department of Labor 
has only issued non-binding safety and health bulletins and guidance on 
the dangers to poultry and healthcare workers.
    The Department of Labor's Web site references CDC guidance on the 
need for individual fitted respirators to protect workers from airborne 
diseases. Would you support such requirements to protect all healthcare 
workers against the spread of airborne diseases, including the flu and 
SARS?
    Answer 3. Employers should always be encouraged to provide the 
greatest possible protection for their employees from workplace 
hazards. I support OSHA's General Respirator standard and fit testing 
requirements. I certainly intend to learn more about the avian flu, and 
if confirmed I will seek input from all stakeholders in determining 
what action OSHA should take.

    Question 3a. What in your view is OSHA's responsibility to protect 
healthcare workers and other first responders from pandemic flu and, as 
Assistant Secretary of OSHA, what specific steps would you take to 
ensure that these workers are protected in the event of a pandemic? Do 
you have plans for the issuance of safety standards that OSHA would 
follow in the event of a pandemic?
    Answer 3a. If confirmed, I will carefully examine OSHA's response 
to pandemic flu, consult with the Centers for Disease Control, and 
recommend whatever actions are necessary to protect workers.

    Question 4. From fiscal year 2000 to fiscal year 2004 the average 
dollar amount of OSHA penalties has dropped by nearly 15 percent, and 
the average penalty for willful violations has dropped from over 
$36,000 in fiscal year 2000 to under $30,000 in fiscal year 2004. The 
average number of hours spent on safety inspections has also decreased. 
And, a recent series in the Kansas City Star described multiple cases 
of reductions in penalties to the point where, in half of the cases 
where workers were injured or killed, employers paid less than $3,000 
in fines.
    These numbers have real consequences for workers and their 
families. As a recent letter from Michelle Lewis, whose father-in-law, 
Mike, was killed in a trench cave-in, said: ``OSHA cited Mike's 
employer, B&B Plumbing, with five violations. The nine-foot trench was 
not inspected or secured properly before Mike and others were sent into 
it. No sloping, shoring or shielding was provided, which is required by 
OSHA for any trench deeper than five feet. B&B was fined $21,000 by 
Federal officials. Is this a serious consequence? Will this help 
employers learn to protect their employees from harm? When thinking 
about my family's loss, this fine seems disproportionate and absurdly 
inadequate, but nothing can bring Mike back to us. Our pain will never 
go away; neither will the images of Mike's death that haunt us. I can 
only hope that people will learn from Mike's death and will take every 
measure imaginable to ensure the safety of workers.''
    I have attached the remainder of Ms. Lewis' letter. President Bush 
has supported increasing penalties for mine safety violations. What is 
your position on increasing penalties under the OSH Act? What would you 
do as Assistant Secretary to review OSHA's approach to citations and to 
ensure that full penalties are imposed on companies when workers are 
killed because of companies' violations of safety laws?
    Answer 4. OSHA recently imposed a record total of $21 million in 
civil money penalties in a single case against BP in connection with 
the explosion at the company's Texas City refinery. OSHA has the 
capability to issue large penalties when justified, and I would 
continue to exercise OSHA's ability to assess high penalties for 
egregious violations of the OSH Act.

    Question 4a. In many cases, there is no criminal prosecution of 
companies and employers whose willful negligence leads to workers' 
deaths, because criminal penalties under OSHA for causing the death of 
a worker are a maximum of 6 months, or 1 year in the case of a repeat 
offense. Do you believe these penalties should be increased? Would you 
support legislation to increase them?
    Answer 4a. If confirmed, I would work with the DOL Solicitor to 
refer particularly egregious cases for criminal prosecution by the 
Department of Justice. I would have to review the current cases to see 
if the current criminal penalties need to be increased.

    Question 5. During the first Bush administration, the Labor 
Department adopted a policy for issuing substantially higher penalties 
for egregious violations of the OSH Act. The Department would issue 
citations and penalties for each separate instance of a violation, or 
each employee exposed to the hazard. In 1995, you were part of two 
opinions by the Occupational Safety Health and Review Commission 
(OSHRC) that rejected this policy. In Arcadian Corporation and Hartford 
Roofing, the Commission ruled that the Secretary could not fine 
companies for each separate violation or for each worker put at risk. I 
believe the Secretary's ability to impose multiple citations is an 
important tool of OSHA enforcement. What do you think needs to be done 
to preserve this approach and, if confirmed, what steps would you take 
to preserve this policy for egregious violations?
    Answer 5. While at Review Commission, we issued several decisions 
upholding OSHA's egregious policy. If confirmed, I would not hesitate 
to utilize the egregious policy in appropriate cases.

    Question 6. Ergonomics is the number one worker safety problem in 
America today. These injuries account for more than one-third of all 
workplace injuries that result in days away from work. In 2002, the 
Department of Labor announced a ``Comprehensive Plan'' to address 
ergonomic issues. Under this plan, however, the Department has only 
issued three sets of voluntary industry guidelines, the last of which 
was completed in March 2004. For what industries do you think ergonomic 
guidelines should be developed? When will you propose and plan to 
finalize these guidelines if confirmed?
    Answer 6. Many stakeholders have worked with OSHA to develop 
ergonomics guidelines; others have chosen to develop their own 
independently. If confirmed, I will direct the Agency to work with any 
stakeholders who wish to develop ergonomic guidelines.

    Question 7. The Department pledged that as part of its 
comprehensive ergonomic plan it would enforce the general duty of 
employers under the OSH Act to provide a safe workplace--which includes 
preventing ergonomic injuries. Yet this Department of Labor has only 
issued 17 ergonomic citations since 2001. And enforcement has tapered 
off drastically--with 12 citations issued in 2003, only 4 in 2004, and 
one in 2005. Would you agree that OSHA has a responsibility and the 
authority to enforce standards against ergonomic hazards through the 
use of the general duty clause? What are your plans to increase OSHA's 
enforcement efforts to address ergonomic hazards?
    Answer 7. OSHA has a clear responsibility to enforce the General 
Duty Clause of the OSH Act. If confirmed, I will continue to cite 
employers for ergonomic hazards where action is warranted and the OSH 
Act Section 5(a)(1) criteria can be met.

    Question 8. One of the duties of the Assistant Secretary is to 
protect our Nation's most vulnerable workers. This includes immigrant 
and minority workers. I know that the Department of Labor has an 
outreach initiative to immigrant workers, and I applaud its decision to 
make Spanish-language safety materials available to workers. However, I 
am concerned that this is simply not enough. In 2004, the most recent 
year for which we have data available, the number and rate of fatal 
work injuries for Latino workers increased sharply. And the fatality 
rate among foreign-born workers continues to be much higher than the 
national average.
    Given the growing role of these workers in our workforce, this 
trend is troubling. It not only highlights failures in our safety 
system and added burdens to our health system--it also places all 
workers at risk. In light of these statistics, what steps would you 
take as the head of OSHA to reduce this trend? What regulatory 
initiatives would you propose? How would you ensure that these workers 
have personal protective equipment and the safety training that they 
need?
    Answer 8. OSHA has already undertaken significant efforts to reach 
out to Hispanic workers. I support that initiative. If confirmed, I 
will examine the Agency's efforts to protect Hispanic workers, and look 
for ways to improve this outreach. I would also note that OSHA 
regulations in general require employers to assess the nature of 
hazards their employees face and ensure their employees are using 
appropriate PPE to protect them from those hazards. Many OSHA standards 
require the use of specific PPE in specific situations. I am aware that 
OSHA is considering a PPE requirement. If confirmed, I will review the 
rulemaking record on this proposal.

    Question 9. A critical part of improving immigrant worker safety is 
to ensure that they report unsafe working conditions to OSHA. However, 
last year U.S. Immigration and Customs Enforcement agents in North 
Carolina posed as OSHA workers and conducted a ``sting'' operation to 
lure workers to a safety training. The ICE agents then arrested the 
workers and initiated deportation proceedings against them. Although 
Secretary Chao has condemned this action, ICE recently announced their 
intention to continue the practice. What would you do as Assistant 
Secretary to ensure that such operations do not happen again? What 
would you do to counteract the damage to OSHA's credibility and to 
establish OSHA as an Agency that will fight to protect immigrant 
workers?
    Answer 9. If confirmed, I will do everything in my power to prevent 
the use of safety-related ``sting'' operations. Secretary Chao has been 
very clear that the Department of Labor does not support safety-related 
``sting'' operations. If confirmed I will use the authority granted to 
me by the OSH Act to protect all workers.
    I will continue and try to improve upon OSHA's outreach to 
immigrant communities and vigorously enforce the OSH Act.

    Question 10. At your hearing you said ``outreach to small 
business'' would be one of your priorities. In your testimony you refer 
to both enforcement and standards as being critical to the mission of 
OSHA, yet you did not discuss either of these priorities in that 
testimony or in your statements before the committee. Do you think that 
outreach to small business is more important than these other 
priorities--more important than protecting vulnerable workers or 
ensuring adequate worker training? Can you identify your other 
priorities?
    Answer 10. I do not believe these are mutually exclusive methods 
for protecting workers. I believe outreach, education, and compliance 
assistance should and can work hand-in-glove with strong, fair, and 
effective enforcement to improve workplace safety and health.

    Question 11. When asked about enforcement, you spoke about the need 
to focus on preventing injuries and illnesses before they occur. How do 
you plan to accomplish this? Under President Clinton, OSHA worked on a 
safety and health program rule, which would have required employers to 
have a safety and health program for identifying and correcting 
hazards. Would you support such a rule?
    Answer 11. Outreach, education and compliance assistance are the 
most effective means to prevent injuries and illnesses before they 
occur. These are also the most effective means to reach the majority of 
employers who wish to comply with OSHA standards and protect their 
workers. Strong, fair and effective enforcement will always be needed 
to reach the minority of employers who fail to comply with the law and 
protect their employees.
    Response to Question of Senator Bingaman by Edwin G. Foulke, Jr.
    Question. There is a longstanding problem of appalling working 
conditions experienced by migrant laborers that thin brush and plant 
trees in our Nation's forest. This problem was most recently 
illustrated in a series of graphic investigative reports in the 
Sacramento Bee. Given the long history of intermittent attention to 
this persistent problem, it will take a dedicated and creative effort 
to develop a lasting solution. In your view, what should OSHA be doing 
to improve its oversight of and outreach on this issue? Will you commit 
to work closely with Congress, OSHA's sister agencies in the Department 
of Labor, the USDA Forest Service, and other relevant agencies to 
ensure that these workers are adequately trained and to assure their 
workplace safety and health?
    Answer. Yes.
    Response to Questions of Senator Murray by Edwin G. Foulke, Jr.
    Question 1. Do you agree that OSHA has a major responsibility to 
address ergonomics hazards in U.S. workplaces?
    Answer 1. Yes.

    Question 2. What are your plans to protect workers from ergonomics 
hazards?
    Answer 2. Many stakeholders have worked with OSHA to develop 
ergonomics guidelines; others have chosen to develop their own 
independently. If confirmed, I will direct the agency to work with any 
stakeholders who wish to develop ergonomic guidelines.
    OSHA has a clear responsibility to enforce the General Duty Clause. 
If confirmed, I will continue to cite employers for ergonomic hazards 
where action is warranted and the OSH Act Section 5(a)(1) criteria can 
be met.

     Question 3. Can you describe some legislative reforms you would 
like to pursue that would help to improve OSHA's enforcement record, 
while also reducing the number of injuries and deaths on the job?
    Answer 3. I believe OSHA's legal authority is adequate to fulfill 
its mission of protecting the health and safety of American workers.

    Question 4. Do you believe OSHA should seek the authority to impose 
additional criminal penalties in cases where OSHA has determined that 
the violation was willful in nature?
    Answer 4. If confirmed, I would work with the DOL Solicitor to 
refer particularly egregious cases for criminal prosecution by the 
Department of Justice. I would have to review the current cases to see 
if the current criminal penalties need to be increased.

    Question 5. Given the $1 billion a week that we are spending as a 
Nation on workplace deaths and injuries, should OSHA be doing more--for 
instance through increased inspections or enforcement--to help prevent 
these staggering economic and personal costs to businesses, our economy 
and of course our workers and their families?
    Answer 5. We must vigorously enforce the law. We must inculcate a 
``culture of safety'' among employers through outreach, education, and 
technical assistance efforts. In addition, we must continue to reach 
out to workers themselves.

    Question 6. If you are confirmed would you reaffirm OSHA's policy 
expressed in their 1994 asbestos standard requirements that brake 
mechanics are at risk of asbestos diseases, including cancer from their 
exposure to asbestos?
    Answer 6. If confirmed, I would enforce the current asbestos 
standard.

    Question 7. Do you believe that dust control safeguards and worker 
education programs are needed--especially given the significant imports 
of asbestos brake parts into the United States?
    Answer 7. If confirmed, I will examine the need for additional 
training requirements regarding asbestos dust exposure levels.

    Question 8. Do you believe that OSHA should propose a ban on the 
use of asbestos by industry?
    Answer 8. It is my understanding that while OSHA has and exercises 
statutory responsibility to require employers to protect workers from 
workplace safety and health hazards, OSHA does not have the statutory 
authority to ban the use of a substance.

    Question 9. What regulatory steps and or other actions would you 
contemplate to encourage the use of substitutes for asbestos in brakes 
and other uses of asbestos?
    Answer 9. It is my understanding that OSHA has and exercises 
statutory responsibility to require employers to protect workers from 
workplace safety and health hazards. While I would welcome a substitute 
for asbestos, OSHA does not have the statutory authority to engage in 
research or development.

    Question 10. Do you believe OSHA should move forward with a warning 
label survey of asbestos-containing friction products, especially from 
countries like Mexico, Colombia, China, Canada and Brazil where the 
volume of export of products that contain asbestos have been rising 
into the United States?
    Answer 10. I am not aware of any warning label survey concerning 
friction products. If confirmed, I will examine the issue and confer 
with other Federal agencies that may have a role to play.

    Question 11. If confirmed will you support the release of a PPE 
rule that says employers should pay for protective clothing for their 
workers while on the job?
    Answer 11. If I am confirmed, I will examine the Agency's efforts 
to protect Hispanic workers, and make any changes I feel are needed. I 
would also note that OSHA regulations in general require employers to 
ensure that employers assess the nature of hazards their employees face 
and ensure their employees are using appropriate PPE to protect them 
from those hazards. Many OSHA standards require the use of specific PPE 
in specific situations. I am aware that OSHA is considering a PPE 
requirement. If I am confirmed, I will review the rulemaking record on 
this proposal.
      Response to Questions of Senator Enzi by Richard E. Stickler
    Question 1. A 2003 Government Accounting Office report noted that 
44 percent of MSHA inspection personnel would be eligible for 
retirement in the next 5 years. If confirmed, how would you propose to 
address the anticipated loss of experienced MSHA personnel?
    Answer 1. It is my understanding that MSHA has already initiated 
vigorous efforts to recruit new staff and already has a substantial 
supply of candidates who have expressed an interest in working for 
MSHA. I also understand that MSHA recruitment efforts like local job 
fairs draw strong interest. I would work to continue these efforts as 
well as pursue other ideas for attracting qualified applicants for 
MSHA. I believe strongly that we must encourage a spirit of 
professionalism and pride in this critical agency.

    Question 2. Much like MSHA personnel, the mining workforce itself 
is aging as well. One frequently quoted estimate is that the average 
age of current mine workers is 52. What do you believe should be the 
respective roles of MSHA, State mine safety and training agencies, and 
the industry in making sure that mining does not suffer an ``experience 
drain,'' and that we preserve the accumulated knowledge and expertise 
of the mining workforce?
    Answer 2. I believe we can best contribute by improving safety and 
health. Prospective miners will not choose this occupation if they 
believe doing so will jeopardize their safety and health. MSHA, the 
States, operators, miners and other stakeholders must all work together 
to ensure that new miners are adequately trained. I was recently 
pleased to see that the Labor Department is supporting coal miner 
safety and skills training in several States.

    Question 3. Do you think that MSHA's post-accident investigatory 
procedures should be modified; and, if so, how?
    Answer 3. MSHA's current investigatory procedures are geared toward 
finding the root cause of an accident, determining if violations of 
MSHA regulations contributed to that accident, determining appropriate 
citations of those violations, and assessing whether any regulatory or 
policy changes could prevent a similar accident in the future. I 
believe these are reasonable goals for any accident investigation. At 
this time, I am not certain that any changes are needed, but I would 
listen to any comments or suggestions others may have.

    Question 4. In the aftermath of the two mine tragedies in West 
Virginia there has been considerable discussion regarding the use of 
technology to enhance mine safety, would you share with the committee 
your views on the importance of safety related technology, the utility 
of currently available technology, and how, if confirmed, you would 
insure that the best technology is available to all miners?
    Answer 4. It is critically important for MSHA and all agencies 
responsible for the safety and health of miners to push the 
implementation of technology that could save miners' lives. As 
administrator of the Bureau of Deep Mine Safety in Pennsylvania, I 
worked with the National Institute for Occupational Safety and Health 
(NIOSH) to test safety technologies in realistic mine settings. I 
believe the leadership of an organization like BDMS or MSHA must do 
everything possible to ensure that the most effective currently 
available safety technology is utilized.

    Question 5. Understandably, the recent emphasis has been 
underground coal mining. MSHA's jurisdiction, however, extends to other 
mining operations as well, such as surface mining, metal and non-metal. 
What issues do these different types of operations have in common and 
what are their differences? How should this be reflected in regulatory 
efforts?
    Answer 5. MSHA's regulations reflect the fact that different types 
of mining entail different safety and health challenges. This is 
reflected in the fact that the Agency itself has two major components 
for enforcement, the Coal Directorate and the Metal/Non-Metal 
Directorate. The Agency has a distinct body of regulations for each of 
these major sectors, as well and different regulations to cover the 
unique hazards associated with surface mining as opposed to underground 
mining. For example, underground coal mines have critical methane, coal 
dust and roof control issues and many underground metal and non-metal 
mines rely on natural ventilation. On the other hand, in some aspects 
all types of mining are similar and entail similar hazards like use of 
heavy equipment operating in a harsh and confined environment. MSHA's 
regulatory efforts must take account of the similarities and 
differences between and among the various types of mining to have an 
effective regulatory regime.

    Question 6. As the former head of a State mine safety agency, does 
MSHA in your view coordinate well with State agencies and what if any 
changes would you suggest to improve those joint efforts?
    Answer 6. As the former head of a State mine safety agency, my 
relationship with MSHA was positive. I worked closely with MSHA 
District Managers to complement our efforts, provide consistency, and 
build team work. If confirmed as head of MSHA I would continue to 
promote these same positive relationships.

    Question 7. Small mines have a unique set of issues and concerns, 
including the practical difficulties of having rescue teams permanently 
on site. Does the current system of requiring that a rescue team be on 
call and able to arrive on site within 2 hours work well enough?
    Answer 7. Mines, particularly small ones, tend to be found in rural 
and remote locations. This can make the kind of specialized response 
required in an emergency difficult. However, we must do all we can to 
improve response times. I do support prompt notification of MSHA if 
there is an accident and a quick response by rescue teams when they are 
called upon.
     Response to Question of Senator Isakson by Richard E. Stickler
    Question. In 2004, the last year of available statistics, MSHA 
imposed $8,450 of fines per coal mine, compared to only $5,650 per coal 
mine at the end of the previous administration. In your opinion, does 
the rise in the number of mine citations mean that American coal mines 
are getting more dangerous or does it mean that our mines are just 
being scrutinized that much better?
    Answer. The statistics you cite could indicate more efficient and 
effective enforcement by MSHA or it could indicate that the average 
mine is larger with more hazards that would be cited in an inspection. 
Given steadily falling accident and fatality rates in recent years, I 
do not believe it is indicative of more dangerous mines.
     Response to Questions of Senator Hatch by Richard E. Stickler
    Question 1. Mr. Stickler, you have extensive experience in the 
mining industry spanning 37 years. Can you think of any ways to provide 
multiple hours of oxygen to miners without introducing a new 
potentially explosive hazard into the mine environment?
    Answer 1. Self-Contained Self-Rescuers (SCSRs) have been found to 
be a safe and effective way for miners to have breathable air to allow 
them to escape from a mine when the air in that mine becomes 
unbreathable. As a coal mine manager, I directed the strategic storage 
of SCSRs throughout the mine, even though it was not required, for the 
purpose of helping miners escape in the event of a fire or explosion. 
This may be a reasonable, readily available way to improve odds of 
survival for miners in such a situation. However, miners should be 
thoroughly trained to evacuate the mine unless escape is physically 
blocked.

    Question 2. Are there any Mine Safety and Health Administration 
(MSHA) certified totally wireless communication systems available for 
underground mines? Are there any that have been submitted for 
certification?
    Answer 2. I don't know of any wireless two-way communication 
systems that will allow communication between the surface and 
underground that are certified and are currently available. There are 
one-way communication systems that allow messages to be sent from the 
surface to the underground. These one-way systems have proven to work 
in some U.S. underground mines.
    Response to Questions of Senator Kennedy by Richard E. Stickler
    Question 1. Since President Bush took office in 2001, MSHA has 
removed at least 17 mine safety items from its regulatory agenda, 
including items on mine rescue teams, breathing devices, escape routes, 
miner training, and investigation and hearing procedures. What safety 
standards would you make a priority as Assistant Secretary, by acting 
upon them during 2006? What timeline would you set for implementing 
other standards?
    Answer 1. If I am confirmed by the Senate, I will reconsider the 
regulatory proposals withdrawn from the regulatory agenda to determine 
whether any should be reinstated. I will also be open to new ideas for 
improving mine safety and health protections.

    Question 2. The Alma Mine fire has focused attention on the use of 
conveyor belt air to ventilate working areas of the mine. This practice 
was largely prohibited prior to a 2004 MSHA regulation that allowed the 
widespread use of such ventilation plans. West Virginia Governor 
Manchin has called for a prohibition on this practice. Do you intend to 
rescind the regulations that permit the use of the belt entry air to 
ventilate mines? If not, why not?
    Answer 2. The Alma Mine fire is still under investigation. It is 
unclear at this point how that fire started. Certainly if it is shown 
that use of belt air caused the fatalities, I would reevaluate the 
standard.

    Question 3. Exposure to high levels of diesel fumes, such as those 
experienced by underground miners, greatly increases the risk of heart 
disease, lung cancer and other serious illnesses. MSHA has a regulation 
limiting miners' exposure to diesel fumes which was scheduled to take 
effect in January 2006. However, the Agency has proposed delaying this 
regulation until 2011. If confirmed as Assistant Secretary, would you 
fully implement the diesel particulate matter regulation, or would you 
delay this much needed standard? Why would you choose such delay, in 
light of the lengthy record of evidence showing the serious health 
hazards that are engendered in exposure to diesel fumes, particularly 
at the level that miners are exposed?
    Answer 3. I am unfamiliar with the Agency's reasons for this delay. 
If confirmed, I will review the matter.

    Question 4. The Mine Safety and Health Act requires that ``mine 
rescue teams shall be available for rescue and recovery work to each 
underground coal or other mine in the event of an emergency,'' but 
regulations permit rescue teams to be within 2 hours travel time and to 
be secured by contract. This interpretation leads to delay in rescue 
teams' arrival and a lack of rescuers familiar with a mine's layout. As 
Assistant Secretary would you require onsite mine rescue teams that are 
familiar with the mine? You expressed concern at the HELP Committee 
hearing that small mines should not have to comply with such a 
requirement. What about larger mines, and how large do you believe a 
mine should be before having to maintain an onsite rescue team?
    Answer 4. We must do all we can to improve response times. The 
feasibility of an on-site mine rescue team would be largely determined 
by the number of employees at a mine who are willing to volunteer. 
However, if confirmed, I will examine the feasibility of on-site mine 
rescue teams and will also closely examine ways that we can improve 
mine rescue response.

    Question 5. In March 2002, as head of the Pennsylvania Bureau of 
Deep Mine Safety, you stated, ``Membership on mine rescue teams has 
been a very dynamic process with many experienced mine rescue members 
retiring or no longer participating as team members. This loss of 
experience and the lack of readily available and interested miners to 
take their place has been dramatic.'' What do you plan to do about the 
``dramatic'' loss of experience and availability of mine rescue 
workers?
    Answer 5. Mine rescue teams are voluntary organizations, and they 
draw their members from the ranks of active miners. Given the mining 
industry's vastly improved productivity, the pool from which mine 
rescue teams are drawn is growing smaller. I believe MSHA, industry, 
and organized labor can work cooperatively to encourage and recruit 
miners to participate in mine rescue teams. As Director of the 
Pennsylvania Bureau of Deep Mine Safety I worked hard to promote mine 
rescue training and preparedness. I attended mine rescue training 
exercises, where I traveled underground with the State trained teams in 
smoke filled entries and participated in the evaluation of the teams 
and new technology for mine rescue. I sponsored and participated in 
mock mine emergency training exercises where mine rescue teams, mine 
managers, miners representatives and agency personnel role-played in a 
rescue plan. I supported and attended local, State and national mine 
rescue competitions where I communicated and demonstrated how special I 
believe mine rescue individuals are. All of this helped instill pride 
and confidence in the mining community and motivated others to 
participate in mine rescue. As head of MSHA I would continue to promote 
mine rescue preparedness through commitment and personal example.

    Question 6. The Sago and Alma mine tragedies raised concerns about 
the procedures used in the investigation of mine accidents. The Mine 
Safety Act permits representatives of the company and the workers to be 
present during witness interviews, a practice unlike those used in 
other investigations. How would you ensure that witnesses feel free to 
speak candidly? How would you protect witnesses in accident 
investigations from retaliation?
    Answer 6. Protecting the integrity and objectivity of an 
investigation is extremely important if that investigation is going to 
determine the root cause of an accident and any violations that may 
have occurred. I understand that a miner may request a confidential 
interview, in which case no one other than Agency investigators will be 
present. I support that right for miners. I would vigorously protect 
the rights of miners against retaliation as well as do my best to 
protect the integrity of accident investigations.

    Question 7. Communications systems that warn miners or guide them 
to safety above ground are of critical need. Australia uses Personnel 
Emergency Devices (PEDs) that allow people outside the mine to send 
messages to miners deep underground. Only a handful of U.S. mines use 
them, even though they helped save the lives of 46 miners trapped by 
fire at the Willow Creek Mine in Utah in 1998. Would you recommend that 
we require these devices in America's mines?
    Answer 7. I would recommend the use of any communication devices in 
any mine where they can be used safely and effectively. The PEDS device 
has provided one-way communication from the surface to underground 
areas in some mines under specific conditions. I understand MSHA has 
initiated a technical evaluation of existing communications systems to 
determine their effectiveness and limitations. I would look forward to 
reviewing the results of this evaluation to see what could be effective 
and reliable in underground coal mines.

    Question 8. Some mines use tracking systems where each miner wears 
a device that sends signals to computerized beacons placed throughout 
the mine. As Assistant Secretary, do you think we should require the 
use of such devices in mines?
    Answer 8. I support the development of effective communications 
technology for use in coal mines. We must recognize the inherent 
limitations, however, of technology that relies on placement of wires 
or electronics inside a mine. MSHA has initiated a technical evaluation 
of existing communication systems to determine their effectiveness and 
limitations. I would look forward to reviewing the results of this 
evaluation to see what could be effective and reliable in underground 
coal mines.

    Question 9. When you were Senior Manager of the Eagle's Nest Mine 
in Van, West Virginia, its injury rate was three times the national 
average. Three miners died in mines under your supervision, including 
two at Mine 84 in Pennsylvania. During the time you ran the Marianna 
Mine, the injury rate rose dramatically and, in 1987, was several times 
higher than it had been in 1984. Do you think these safety records are 
indicative of your level of care for miners' safety? How do you explain 
these fatality and injury rates that were well beyond the national 
norms?
    Answer 9. During my career I managed numerous mining operations. 
Almost all had very good safety records, and those that didn't had a 
high accident rate before I was assigned to take over their management. 
According to MSHA data, injury rates at the mines I managed generally 
improved during my time as a mine superintendent, and injury rates at 
those mines compared favorably to those at other underground coal mines 
in Pennsylvania, where most of the mines I managed were located. The 
injury statistics at Marianna Mine and at other Pennsylvania 
underground coal mines increased between 1984 and 1987 due to an MSHA 
initiative to improve reporting of injuries and accidents. At Eagles 
Nest, NFDL (non-fatal days lost) rates rose during my first year there 
due to my policy that accidents be properly reported in accordance with 
MSHA requirements. However the NFDL rate dropped during my second and 
final year. MSHA data show a decrease in injury rates at mines 
regulated by the Pennsylvania Bureau of Deep Mine Safety during my 
tenure as Director. The fatalities that occurred at Mine 84 are tragic 
and regrettable, as are all mine fatalities. Mine safety professionals 
seek to learn from these incidents to avoid them in the future. As I 
noted at my confirmation hearing, I worked as a rank-and-file miner and 
served as captain of a mine rescue team. My concern for the safety and 
health of miners comes from first-hand experience.

    Question 10. Reports by MSHA and the Pennsylvania Department of 
Environment Protection blamed the Quecreek Mine accident on outdated 
maps, and a Pennsylvania grand jury found that the system of regulating 
underground coal mines was inadequate and antiquated. Numerous media 
accounts have indicated that officials long knew that unmapped ``mine 
voids'' were a problem. Were you aware of this problem and, if mapping 
was such a known and serious concern, why didn't you take action to 
address it?
    Answer 10. Voids left by old unmapped mines have long been 
recognized as a problem. The standard approach of MSHA and Pennsylvania 
was to require advance drilling when maps showed that new mining was 
approaching another underground mine. This requirement recognized the 
potential inaccuracy in old maps but was obviously insufficient. I took 
action as Director of BDMS to extend the distance at which drilling was 
required. If confirmed, I would support continued efforts by MSHA and 
State agencies to digitize and centralize access to mine maps.

    Question 11. While you led the Pennsylvania BDMS, you granted a 
number of variances to general safety requirements to individual mines. 
One of the areas in which you did this was with respect to the general 
requirement that mine conveyor belts be isolated. Didn't this increase 
the possibility that conveyor belt air could spread fires and hazardous 
fumes throughout the mine? Can you tell us why you granted such 
variances?
    Answer 11. The Pennsylvania Mine Act does not specifically address 
the isolation of the belt entry or the use of belt entry air to 
ventilate the face. Historically many mines did not isolate the belt 
entry. There had been controversy and inconsistent interpretation of 
this issue. After I became Director, I issued an interpretation that 
required mines that did not isolate the belt entry to submit a variance 
plan which included, among other safety precautions, the use of carbon 
monoxide monitoring and early warning systems that were not otherwise 
required by the act. The end result of this process was enhanced safety 
and protection that a belt entry fire would be detected at the earliest 
possible time and before a fire could reach a level that would prevent 
the escape of miners.

    Question 12. Budget shortages have contributed to a reduction in 
the number of professionals dedicated to coal enforcement, which has 
dropped from 1,233 in 2001 to 1,043 in 2005, a 15 percent reduction. 
The administration's fiscal year 2007 budget request for coal 
enforcement under MSHA is still 9 percent below budget levels, adjusted 
for inflation, at the start of this administration. Do you think that 
more coal safety enforcement staff is necessary? If so, in what jobs 
specifically do you plan to add staff?
    Answer 12. If I am confirmed, I will carefully examine all aspects 
of the Agency's operations, including but not limited to staffing in 
the Coal Directorate, to ensure the agency has adequate resources to 
carry out its mission.

    Question 13. MSHA fined the Jim Walters Mine in Alabama $435,000 
for infractions associated with the explosion and fire that killed 13 
miners but, unbelievably, an administrative judge reduced these fines 
to a mere $3,000. All too often, MSHA sees penalties reduced through 
appeals. Are you concerned about the ability of these review 
commissions to reduce fines in this manner? Do you believe that the 
Secretary should have the authority to set these fines and make them 
stick?
    Answer 13. I agree that the reduction of the penalty in the case of 
the JWR accident was not appropriate. I understand that the Department 
is appealing this reduction.
    Response to Questions of Senator Clinton by Richard E. Stickler
    Question 1. In the past month alone, we have seen two tragedies 
that have resulted in the deaths of 14 experienced miners. In its first 
few years, the Bush administration dropped more than a dozen proposed 
health and safety regulations left over from the Clinton 
administration. Since January 2001, Bush political appointees at MSHA 
have withdrawn or delayed final action on 18 mine safety rules. Three 
of these rules may have had the potential to speed the rescue and 
increase the chances of survival for the 14 miners killed in the recent 
West Virginian disasters. Can you tell the committee how you would 
spearhead efforts to increase safety conditions for our Nation's 
miners?
    Answer 1. If confirmed by the Senate, I would reconsider the 
regulatory proposals dropped from the regulatory agenda to determine if 
any should be reinstated.

    Question 2. On September 4, 2002, the Bush administration withdrew 
a Mine Rescue Team regulation specifically aimed at increasing 
prevention and preparedness. The regulation proposed financial 
incentives for mine operators to establish two fully trained and 
equipped mine rescue teams onsite. The stated reason for the withdrawal 
said, ``We have increased the number and improved the quality of the 
mine rescue teams available to assist miners in life threatening 
emergencies.'' MSHA logs show that the first call from the Sago Mine to 
MSHA personnel at home came at approximately 8:10 a.m and it took 20 
minutes to locate a MSHA representative who could respond to the 
crisis. It took an additional 2 hours for this member to arrive onsite. 
Given this information, what is your stance on the Federal regulation 
that allows MRTs to be considered ``available'' if they are ``within 2 
hours of the mine?'' Do you think this is appropriate? Do you think the 
decision to withdraw the regulation I described was appropriate?
    Answer 2. I am not familiar with the agency's reasons for 
withdrawing this agenda item. If confirmed, I will examine ways we can 
improve mine rescue response. I also believe MSHA should be promptly 
notified in the event of an accident.

    Question 3. In addition to delayed rescue efforts, mine-safety 
experts have identified inadequate oxygen supplies as a possible factor 
in the deaths of the 12 miners at Sago. Am I correct that there is 
currently no MSHA requirement that coal operators store additional 
oxygen units underground? Do you think there should be one?
    Answer 3. As a coal mine manager, I directed the strategic storage 
of SCSRs for the purpose of improving the odds that miners could have 
adequate air to escape in the event of a fire or explosion. This may be 
a reasonable, readily available way to improve odds of survival for 
miners in such a situation. In addition, we should not lose sight of 
the primary reason for oxygen units (SCSRs) underground, and that is to 
escape from the mine in an emergency. This is especially critical in 
underground coal mines where smoldering fires can produce large amounts 
of carbon monoxide or following a methane explosion that may generate 
secondary explosions.

    Question 4. Under the Clinton administration, MSHA posted a 
proposed rule-making regarding revised coal mines standards on self-
rescue devices in order to allow miners adequate time escape to the 
surface or a safe location in case of an emergency. This proposed 
rulemaking also called for manufacturer expiration dates and periodic 
inspections to ensure fully functioning SCSRs. The standards were 
withdrawn in September of 2001, ``in light of resource constraint and 
changing safety and health regulatory priorities.'' What resource 
constraints are so great that they inhibit MSHA from providing miners 
with adequate SCSRs?
    Answer 4. I am not familiar with the reasons for its withdrawal. I 
have recently learned that MSHA is considering an Emergency Temporary 
Standard on this subject. If confirmed, I will reconsider the proposal 
and determine if it should be reinstated on the regulatory agenda.

    Question 5. Yet another Clinton administration requirement 
withdrawn by the Bush administration would have required mines to 
purchase conveyer belts with improved flame test and approval standards 
after 1 year. This decision directly contradicts a study by the 
National Institute for Occupational Safety and Health which highlighted 
the incredible speed of flame propagation on conveyer belts and its 
critical role in mine fires. Today's only existing standard measures 
burn time and its outdated. As we now know, the Alma accident occurred 
when a coal conveyer belt caught fire. Do you support changing these 
safety standards?
    Answer 5. The Alma Mine fire is still under investigation. It is 
unclear at this point how that fire started. If it is shown that the 
use of a more fire resistant conveyor belt would have prevented the 
fire I would, if confirmed, reconsider the issue of requiring improved 
belting.

    Question 6. On Monday, January 29, 72 Canadian potash miners were 
rescued from an underground fire after being locked down overnight in 
airtight chambers packed with enough oxygen, food and water for several 
days. The success of this rescue is largely attributed to these 
chambers, extensive training of rescue workers and uninterrupted 
communication. Davitt McAteer, head of the U.S. Mine Safety and Health 
Administration under former President Bill Clinton, called the Canadian 
rescue success a, ``textbook recovery.'' According to McAteer, there 
are no such chambers in U.S. mines, because in the late 1970s, the U.S. 
Government determined there was no material strong enough to withstand 
the secondary explosion. Since then, he said, the National Aeronautics 
and Space Administration and the Defense Department have created 
stronger materials. Are Mr. McAteer's assertions correct? If NASA and 
the Department of Defense have created materials that could draw upon 
the success of this recent Canadian success, would you support 
constructing similar safety chambers in our mines?
    Answer 6. I think refuge chambers can be effectively used and 
practically employed in many situations and I believe we need to look 
carefully at expanding their use in this country. I would certainly 
review the information that NASA and DOD have developed about new 
materials that increase the feasibility of such chambers.

    Question 7. Governor Manchin and the West Virginia State 
legislature took immediate action to prevent tragedies like Sago from 
ever happening again. In an overwhelming showing of bi-partisan unity, 
the legislature unanimously passed legislation, deliberating for just 1 
day, to protect workers by improving the safety in WV's mines. This 
bill takes a number of important steps--it directs the director of 
Homeland Security and Emergency Management and the Office of Miners' 
Health, Safety and Training to create a 24-hour, 7 day-a-week emergency 
operations center operated by the Division of Emergency Services; it 
requires mine operators to provide caches of self-rescue devices in 
mines; it requires each and every miner underground to be equipped with 
wireless emergency communication devices; and it mandates that miners 
be equipped with wireless tracking devices capable of providing real-
time monitoring of the physical location of each person under ground. 
The bill also creates felony criminal offenses for removing or 
tampering with any of the safety devices required as part of the 
legislation. Officials in Ohio, Utah, Kentucky, Illinois and 
Pennsylvania are considering similar commonsense safety proposals. Do 
you support a Federal bill modeled after the West Virginia proposal? If 
not, what aspects of it do you oppose?
    Answer 7. We should ensure that miners have adequate supplies of 
breathable air to allow them to escape the mine in the event of an 
accident. As a coal mine manager, I directed the strategic storage of 
SCSRs for the purpose of improving the odds that miners could have 
adequate air to escape in the event of a fire or explosion. I would 
also support deployment of any available and effective communication 
technologies that could improve communication among miners, between 
miners and the surface, and miners and rescuers. I also support prompt 
notification of MSHA when there is an accident.

    Question 8. Senator Specter held a hearing in his Labor 
Appropriations Subcommittee in which he said he would fight for Federal 
legislation that would stiffen penalties against coal operators that 
violate safety rules and would require that up-to-date safety equipment 
be placed in mines. Senator Specter also called for an end to a 
practice in which operators can reduce the fines they pay through an 
appeals process, and endorsed imposing a fee on coal operators to be 
used for new safety equipment. Are these ideas that make sense, from 
your perspective?
    Answer 8. The administration has proposed to increase the maximum 
civil money penalty the Agency may impose to $220,000 for flagrant 
violations, and I support this. If I am confirmed, I will do all I can 
within the Mine Act to ensure that penalties assessed for violations of 
the Mine Act and MSHA regulations are effective and fairly imposed. I 
would also review the adequacy and effectiveness of MSHA's current 
penalty structure. The right to appeal penalties is incorporated in the 
Mine Act, which is Congress' prerogative to change.

    Question 9. MSHA is still using data obtained in 1972 to regulate 
the maximum levels of substances, such as methane, workers can be 
exposed to for 8 hour periods even though technology has advanced 
significantly. Do you support updating this research to ensure that the 
levels of chemicals American workers are exposed to on a daily basis 
are safe?
    Answer 9. Yes. MSHA regulation and enforcement should always be 
based on the best available science.

    Question 10. Current penalties on mine violations are derived from 
a formula that considers a number of factors including a mine's 
financial standing, the number of violations it has incurred, etc. 
According to the Washington Post: ``Two winters ago, what had been a 
mediocre safety record at West Virginia's Sago Mine grew dramatically 
worse. Over 23 months beginning in February 2004, two dozen miners were 
hurt in a string of accidents, some of them caused by rock chunks 
falling from the mine ceiling. Federal safety inspectors slapped the 
mine with citations 273 times, or an average of once every 2\1/2\ days. 
Despite this record, the price paid by Sago's operators was light. 
Government regulators never publicly discussed shutting down the mine 
and never sought criminal sanctions. The biggest single fine was $440, 
about 0.0004 percent of the $110 million net profit reported last year 
by the mine's current owner, International Coal Group Inc.'' Given this 
abysmal oversight, do you think the formula yields appropriate 
penalties on mines? Are updates necessary to ensure that penalties 
serve as effective deterrents in mine maintenance?
    Answer 10. The administration has proposed to increase the maximum 
civil money penalty the Agency may impose to $220,000 for flagrant 
violations, and I support this. If I am confirmed, I will do all I can 
within the Mine Act to ensure that penalties assessed for violations of 
the Mine Act and MSHA regulations are effective and fairly imposed. I 
would also undertake a review of the formula for assessing penalties.

    Question 11. Much of the focus in the aftermath of the tragedies in 
Pennsylvania and West Virginia suggest that improved technology could 
have saved miners' lives. What innovations, in your opinion, are most 
necessary to implement if you take office?
    Answer 11. If I am confirmed, I will do everything in my power to 
ensure that miners and mine operators have access to and utilize the 
best and most effective technology available to improve the safety of 
miners. These may include, but may not be limited to, improvements in 
breathable air supplies for miners seeking to escape from toxic 
atmospheres, and improved communications among miners, between miners 
and rescuers, and between miners and the surface.

    Question 12. Current law mandates each miner have two separate 
means of communication when underground. Despite available text 
messaging technology that recently saved 45 workers in Utah, most mines 
criticize this technology as it employs one-way messaging. New walkie 
talkies are effective for approximately 1,000 feet. This sort of 
technology could be easily implemented and holds the potential to save 
lives in the event of an emergency. Why haven't these technologies been 
given to miners and would you champion a proposal to ensure that they 
are?
    Answer 12. I would support the use of any technology that can 
effectively improve communications among miners, between miners and 
rescuers, and between miners and the surface. If confirmed, I would 
work to develop better communications technology.
    Response to Question of Senator Bingaman by Richard E. Stickler
    Question. Since 1977, the Mine Safety and Health Administration 
(MSHA) has investigated 21 coal mine disasters claiming 158 lives. I 
understand that many of these miners were lost because rescue efforts 
were hampered by cut or burned telephone cables, or trapped miners were 
unable to reach these telephones. In too many instances, wired 
telephone systems have contributed significantly to the loss of life, 
including the recent tragedy at Sago Mine. Current MSHA regulations 
only require wired telephones or trolley phone facilities. I believe 
with available technologies, these tragedies could be avoided.
    Would you address this issue, and, provide your opinion on whether 
the Federal Government should mandate the deployment of wireless mine-
wide radio communications and tracking systems in each underground 
mine.
    Answer. I intend to support the deployment of technology that can 
improve communication for underground miners. If such technology exists 
and is effective, I would support its use and would consider a 
requirement for it.
     Response to Questions of Senator Murray by Richard E. Stickler
    Question 1. Can you please comment on whether you think our Federal 
mine safety laws also need to be swiftly updated to incorporate some of 
the specific provisions enacted in West Virginia, including improved 
communication and locator devices for miners, oxygen supply tanks 
stationed throughout the mine and mine rescue teams that are onsite, as 
opposed to 2 hours away.
    Answer 1. I believe it is appropriate to ensure that miners have 
adequate supplies of breathable air to allow them to escape hazardous 
conditions. As a coal mine manager, I directed the strategic storage of 
SCSRs for the purpose of improving the odds that miners could have 
adequate air to escape in the event of a fire or explosion. I would 
also support deployment of any available and effective communication 
technologies that could improve communication among miners, between 
miners and the surface, and miners and rescuers. And of course, I 
support measures that would facilitate the earliest possible emergency 
response such as the prompt notification of MSHA in the event of an 
accident. If confirmed, I will examine the feasibility of onsite mine 
rescue teams and will also closely examine ways that we can improve 
mine rescue response.

    Question 2. Do you not think there is any value in amending the law 
to provide a biting minimum penalty for significant and substantial 
violations?
    Answer 2. The administration has proposed to increase the maximum 
civil money penalty the Agency may impose to $220,000 for flagrant 
violations, and I support this. If I am confirmed, I will do all I can 
within the Mine Act to ensure that penalties assessed for violations of 
the Mine Act and MSHA regulations are effective and fairly imposed. I 
would also review the adequacy and effectiveness of MSHA's current 
penalty structure.

    Question 3. What about for mines with a certain number of 
withdrawal orders over a period of a year?
    Answer 3. If confirmed, I will examine the agency's penalty 
structure to see if some linkage between closure orders and penalties 
would be appropriate.

    Question 4. How about amending the law to eliminate the discretion 
of the Agency and the Commission to consider various adjustment factors 
where the operator has a bad record or where the accident is serious?
    Answer 4. As you know, MSHA penalties are assessed using six 
statutory factors; among these are the operator's history of violations 
and good faith in correcting hazards. If I am confirmed, I will examine 
the weight given to these various statutory factors in assessing 
penalties.

    Question 5. What do you think of tightening up the collection 
requirements so that mine operators are never tempted to become 
scofflaws?
    Answer 5. It is my understanding that MSHA has a regular collection 
program it uses for operators whose penalties are overdue that follows 
the procedures under the Debt Collection Act. MSHA recently filed a 
complaint against several coal mine operators that asks that the 
operators be enjoined from failing to pay penalties for future 
violations of the Mine Safety and Health Act and be required to post a 
bond with the court to guarantee future compliance with the law.

    Question 6. It is apparently the legal position of the Department 
that it can simply drop items on its regulatory agenda without public 
notice if those items have not yet reached the proposed rule stage? 
Would you pledge to provide public notice, and a substantive 
explanation, for any item dropped from the agenda while you are 
Assistant Secretary?
    Answer 6. I am not familiar with the requirements of Federal law 
with respect to rulemaking processes or setting the regulatory agenda, 
which I would familiarize myself with if I am confirmed. I would 
certainly observe all legal requirements for notice and comment.

    Question 7. MSHA is currently in the process of gathering 
information about certain devices used in the United States and other 
countries to improve the chances of survival of underground miners 
following an accident. One of these devices is a safety chamber, where 
the miners can seek refuge until rescue is possible. Although many 
mines have such devices, and they are considered feasible for 
underground U.S. coal mines by the mining industry, a senior MSHA 
official was recently quoted as saying the devices were not suitable 
for such use. Can you tell this committee whether its seriously looking 
at requiring U.S. mines to adopt such devices, or has the agency 
already made up its mind?
    Answer 7. I think refuge chambers can be effectively used and 
practically employed in many situations, and I believe we need to look 
carefully at expanding their use in this country. I would certainly 
review the information that NASA and DOD have developed about new 
materials that increase the feasibility of such chambers.

    Question 8. The bill introduced recently by Senator Byrd and 
Rockefeller provides that MSHA will regularly review its existing 
regulations to ascertain if they should be updated in light of new 
technological developments. How often do you think it would be 
appropriate to conduct such a review?
    Answer 8. MSHA regulation and enforcement should always be based on 
the best available science. I would support periodic reviews of MSHA 
regulations.

    Question 9. Would you pledge to conduct such a review yourself 
during your first year of office, to give the public an opportunity to 
participate in such a review, and to notify the public and the Congress 
of the result?
    Answer 9. MSHA would be required to seek stakeholder input in any 
revision of regulations. If I am confirmed I will ensure that the 
process is followed. I also believe that the public is a source of 
ideas. I would welcome constructive suggestions. I would commit to 
beginning such a review, but finishing it may not be achievable in 1 
year.

    Question 10. I am greatly troubled by reports that although the 
Mine Act specifically mandates certain practices, and bans others, that 
MSHA has ignored those mandates in recent rulemaking actions. It has 
recently been reported, for example, that the act requires the 
availability of underground safety chambers, and bans the practice of 
belt air. Can you comment on these specific assertions, and give this 
committee your assurances that MSHA will follow the law under your 
administration?
    Answer 10. If I am confirmed, it is my intention to vigorously 
enforce the Mine Act. As I have mentioned above, I support the use of 
refuge chambers wherever it is practical to do so. It is my 
understanding that for many years, MSHA has granted variances to allow 
the use of belt air, and this is a common practice in mining. I would 
need to look into the specific question you raise concerning apparent 
inconsistencies. I assure you that I intend to follow the law.

    Question 11. I want to ask you specifically about section 101(a)(9) 
of the Mine Act. This provision of the law provides that:
    ``No mandatory health or safety standard promulgated under this 
title shall reduce the protection afforded miners by an existing 
mandatory health or safety standard.''
    It now appears that this administration does not intend to honor 
this important statutory obligation. In September 2005, MSHA proposed 
delaying the implementation of an important health standard for 5 full 
years notwithstanding this provision. In fact, MSHA expressly asserted 
that delaying implementation for 5 more years would not violate this 
provision of the statute.
    Can you promise this committee that you will uphold the plain 
meaning of section 101(a)(9) of the Mine Act, and that you will 
personally revisit the Department's September 2005 conclusion that a 
delay in implementing the final limit under this (Diesel Particulate 
Matter) rule does not violate the act?
    Answer 11. I am not familiar with the Agency's reasons for a 5 year 
phase-in of the Diesel Particulate Matter rule. If I am confirmed, I 
will review the issue, including the record of the rule and the 
arguments both supporting and questioning this action.

    Question 12. If your nomination is approved by this committee, will 
you stop the delays and allow the final (DPM) limit to go into effect 
to protect the health of miners at all the covered mines?
    Answer 12. I am not familiar with the Agency's reasons for a 5 year 
phase-in of the Diesel Particulate Matter rule. If I am confirmed, I 
will review the issue, including the record of the rule and the 
arguments both supporting and questioning this action.

    Question 13. Do you think that if your nomination is approved, you 
can ensure that MSHA operates in an independent manner, free of 
inappropriate influence from the mining industry?
    Answer 13. If I am confirmed, I pledge to perform my duties at MSHA 
with honesty and integrity. I served for 6 years as the regulator for 
the underground mining industry in one of the largest coal mining 
States in the Nation. I believe that during that time, I conducted the 
Agency's affairs with honesty and integrity. I am proud that injury 
rates fell each year I ran that Agency. I have been retired since 2003 
and expect to return to retirement after my service at MSHA.

    Question 14. Can you provide me with specific examples of steps you 
intend to take to reverse the Agency's recent trend of relying on 
voluntary compliance with the industry and issuing fewer and less 
significant fines, without taking any steps toward protecting the 
health and safety of miners?
    Answer 14. As I said at my confirmation, I believe most of the 
accidents that have occurred in my memory happened because the law and 
regulations were not followed. That indicates a clear need for strong, 
fair, and effective enforcement. Strong enforcement can be 
appropriately supplemented with outreach training and technical 
assistance. I would use all these tools to prevent violations of the 
law and regulations and to prevent accidents before they occur. If 
confirmed, I also plan to review the agency's penalty and assessment 
procedures and formula.
          Questions of Senator Harkin for Richard E. Stickler
    Question 1. What steps will you take to expedite the research of 
two-way technology that would allow for communications between miners 
and rescuers above ground in accident situations?
    Question 2. How would you use your platform in this position to 
influence the improvement of air supply technology that would prolong 
the amount of time miners can be exposed to high levels of carbon 
monoxide without suffering debilitating injury or loss of life?
    Question 3. As these technologies are developed, how will you push 
industry to make their use more prevalent?
    Question 4. Using the Sago Mine as an example, do you believe the 
fines companies have been assessed for safety and health violations in 
the last year have been sufficient to encourage companies to quickly 
correct those violations and deter them from lax future enforcement of 
safety regulations?
          Questions of Senator Harkin for Edwin G. Foulke, Jr.
    Question 1. Employer Payment for Personal Protective Equipment--I 
am concerned over OSHA's inaction on the regulation concerning Employer 
Payment for Personal Protective Equipment (PPE). This rule, undertaken 
in 1999, makes clear that employers are required to pay for equipment 
that protects workers from workplace hazards that cannot otherwise be 
controlled. Although the rule has been ready to go for 5 years, it has 
not been issued by the Department of Labor. This is especially alarming 
because the rate of worker deaths and injuries has increased among 
Hispanic workers who take on a disproportionate number of jobs in the 
Nation's most dangerous professions, including the construction 
industry and the meatpacking industry.
    The DOL has been asked repeatedly to either issue the standard or 
explain why they have not. Their latest regulatory agenda (October 
2005) states that expected final action will come in March 2006, a date 
that has been a moving target.
    Can we get a commitment from you to look into this situation and 
remedy it by issuing the standard no later than March 2006? If not, why 
not?
    Question 2. OSHA Outreach--A lot of small business owners don't 
think that OSHA does apply or should apply to them. They think that 
OSHA regulations don't apply because there has been a failure to 
educate them on their responsibilities under this important 
legislation. They don't think OSHA should apply to them because they 
don't believe adherence to OSHA is cost-effective or too burdensome.
    I would like you to speak to this problem and outline how you will 
remedy it.

    [Whereupon, at 3:30 p.m., the committee was adjourned.]

                                    

      

```