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S. HRG. 111–812 

INVESTING IN MINE SAFETY: PREVENTING 

ANOTHER DISASTER 

HEARING 

BEFORE A

SUBCOMMITTEE OF THE 

COMMITTEE ON APPROPRIATIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SPECIAL HEARING 

MAY 20, 2010—WASHINGTON, DC 

Printed for the use of the Committee on Appropriations 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON APPROPRIATIONS 

DANIEL K. INOUYE, Hawaii, Chairman 

ROBERT C. BYRD, West Virginia 

PATRICK J. LEAHY, Vermont 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

HERB KOHL, Wisconsin 

PATTY MURRAY, Washington 

BYRON L. DORGAN, North Dakota 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

JACK REED, Rhode Island 

FRANK R. LAUTENBERG, New Jersey 

BEN NELSON, Nebraska 

MARK PRYOR, Arkansas 

JON TESTER, Montana 

ARLEN SPECTER, Pennsylvania 

THAD COCHRAN, Mississippi 

CHRISTOPHER S. BOND, Missouri 

MITCH MCCONNELL, Kentucky 

RICHARD C. SHELBY, Alabama 

JUDD GREGG, New Hampshire 

ROBERT F. BENNETT, Utah 

KAY BAILEY HUTCHISON, Texas 

SAM BROWNBACK, Kansas 

LAMAR ALEXANDER, Tennessee 

SUSAN COLLINS, Maine 

GEORGE V. VOINOVICH, Ohio 

LISA MURKOWSKI, Alaska 

CHARLES J. HOUY, Staff Director 

BRUCE EVANS, Minority Staff Director 

SUBCOMMITTEE ON DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND

EDUCATION, AND RELATED AGENCIES

TOM HARKIN, Iowa, Chairman 

DANIEL K. INOUYE, Hawaii 

HERB KOHL, Wisconsin 

PATTY MURRAY, Washington 

MARY L. LANDRIEU, Louisiana 

RICHARD J. DURBIN, Illinois 

JACK REED, Rhode Island 

MARK PRYOR, Arkansas 

ARLEN SPECTER, Pennsylvania 

THAD COCHRAN, Mississippi 

JUDD GREGG, New Hampshire 

KAY BAILEY HUTCHISON, Texas 

RICHARD C. SHELBY, Alabama 

LAMAR ALEXANDER, Tennessee 

Professional Staff 

ERIK FATEMI

MARK LAISCH

ADRIENNE HALLETT

LISA BERNHARDT

BETTILOU TAYLOR (Minority) 

SARA LOVE SWANEY (Minority) 

JENNIFER CASTAGNA (Minority) 

Administrative Support 

TERI CURTIN
(III) 

C O N T E N T S 

Page 

Opening Statement of Senator Tom Harkin ......................................................... 1 

Statement of Hon. Joseph A. Main, Assistant Secretary of Labor for Mine 

Safety and Health, Mine Safety and Health Administration, Department 

of Labor ................................................................................................................. 3 

Prepared Statement of ..................................................................................... 5 

Statement of Hon. M. Patricia Smith, Solicitor of Labor, Department of Labor .......................................................................................................................... 11 

Prepared Statement of ..................................................................................... 13 

Statement of John Howard, M.D., Director, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, 

Department of Health and Human Services, Atlanta, Georgia ....................... 15 

Prepared Statement of ..................................................................................... 17 

Statement of Mary Lu Jordan, Chairman, Federal Mine Safety and Health 

Review Commission, Washington, DC ............................................................... 22 

Prepared Statement of ..................................................................................... 23 

Statement of Senator Robert C. Byrd .................................................................... 29 

Prepared Statement of ..................................................................................... 30 

Statement of Don L. Blankenship, Chairman and CEO, Massey Energy Company, Richmond, Virginia .................................................................................... 38 

Prepared Statement of ..................................................................................... 40 

Statement of Cecil E. Roberts, International President, United Mine Workers 

of America, Fairfax, Virginia .............................................................................. 44 

Prepared Statement of ..................................................................................... 46 

Additional Committee Questions ............................................................................ 66 

Questions Submitted to Hon. Joseph A. Main ...................................................... 66 

Questions Submitted by Senator Tom Harkin ...................................................... 66 

Questions Submitted to John Howard ................................................................... 84 

Questions Submitted by Senator Thad Cochran ................................................... 84 

Questions Submitted by Senator Robert C. Byrd ................................................. 85 

Letter From Patton Boggs LLP .............................................................................. 86 

(1) 

INVESTING IN MINE SAFETY: PREVENTING 

ANOTHER DISASTER 

THURSDAY, MAY 20, 2010 

U.S. SENATE,

SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN

SERVICES, AND EDUCATION, AND RELATED AGENCIES, 

COMMITTEE ON APPROPRIATIONS, 

Washington, DC. 

The subcommittee met at 2:05 p.m., in room SD–106, Dirksen 

Senate Office Building, Hon. Tom Harkin (chairman) presiding. 

Present: Senators Harkin, Byrd, and Murray. 

OPENING STATEMENT OF SENATOR TOM HARKIN

Senator HARKIN. The Labor, Health, Human Services, Education, 

and Related Agencies Appropriations Subcommittee will now come 

to order. 

The tragic loss of 29 lives and the two serious injuries at the 

Upper Big Branch mine in West Virginia is what brings us together this afternoon. Our hearts and prayers go out to their families, coworkers, and friends. 

As the son of a coal miner, I feel their loss. 

While Upper Big Branch was the catalyst for this hearing, we 

understand that investigations into this disaster are under way, 

and we will not ask the witnesses to comment on anything that 

could hinder those investigations. What we will discuss is how we 

can improve the safety and health of our Nation’s miners. 

This subcommittee has taken the lead, over the past several 

years, in adding resources to the budgets of Federal agencies that 

are charged with this critical responsibility. Much of that credit belongs to Senator Byrd, who asked that we hold this hearing and 

will be joining us shortly. He is a true champion for West Virginia 

and coal miners everywhere. 

Over the past 2 years, additional funding provided by this subcommittee has enabled the Mine Safety and Health Administration 

(MSHA), to conduct 100 percent of its required safety and health 

inspections for the only time in its history, resulting in record low 

fatality rates in the mining industry. In fact, in 2009, the number 

of fatalities in coal mines reached a low of 18. To put that in perspective, when my father was a coal miner in Iowa, there were 

more than 3,000 mining fatalities every year. 

However, as the number of inspections went up, so did the number of citations. And, increasingly, mine operators have chosen to 

contest those citations rather than to pay them. In 2006, operators 
2 

contested roughly 7 percent of citations. Last year, they contested 

more than 25 percent. 

As a result, the appeals process has become backlogged at the 

Federal Mine Safety and Health Review Commission (FMSHRC), a 

situation that enables repeat offenders to avoid paying penalties or 

being placed on ‘‘pattern of violations’’ status. That backlog needs 

to be reduced, and I’m here to say, it will be reduced. 

Last year, at the request of Senator Byrd, this subcommittee 

funded the hiring of four new judges at the FMSHRC. In addition, 

last week, the Appropriations Committee marked up a supplemental spending bill that includes $22 million to help the 

FMSHRC and the Department of Labor (DOL) process more cases 

and modernize its operations. We will discuss this in more detail 

later in this hearing. 

We will also hear from the National Institute for Occupational 

Safety and Health (NIOSH) about the investments this subcommittee has made in research and technology, particularly regarding communications devices, the effectiveness of mine rescue 

chambers, and the state of research into methane gas explosions. 

And we will explore how the funding can best help create the culture of safety that we need to protect our Nation’s miners. 

These efforts go hand in hand with work I’m doing to improve 

mine safety on the authorizing side, as chairman of the HELP 

Committee. I held a mine safety hearing in that Committee 3 

weeks ago and am working on legislation that will ensure that 

MSHA has the tools it needs to effectively enforce the law and keep 

our workplaces safe. 

I will keep the record open for any opening statements by our 

Ranking Member, Senator Cochran. And we’ll go into our first 

panel. 

Now, let me say, at the outset, that we have a vote at 2:30 p.m. 

I will have to recess the subcommittee at that time for several minutes while we go over to vote on the cloture vote. But, then we will 

come back and resume our hearing, shortly thereafter. 

We have two panels today. For our first panel I’ll introduce all 

the witnesses, and then we’ll open it for statements our first panel. 

Mr. Joseph Main, has served as Assistant Secretary of Labor for 

Mine, Safety, and Health since October 2009. Mr. Main began 

working in the mines in 1967; in 1974 he began his career with the 

United Mine Workers of America (UMWA); in 1982 he was appointed the administrator of the UMWA Occupational Health and 

Safety Department—a position he held for 22 years. 

Ms. Patricia Smith has served as the Solicitor of Labor (SOL) 

since March of this year. Prior to becoming the SOL, Ms. Smith 

was a New York State Commissioner of Labor. And prior to that, 

Ms. Smith served as chief of the Labor Bureau in the New York 

State Attorney General’s office, a position she held since 1999. 

Dr. John Howard has served as the Director of NIOSH since July 

2002. Prior to this, Dr. Howard was the chief of the Division of Occupational Safety and Health in the California Department of Industrial Relations. 

Ms. Mary Lu Jordan has served as chairman of the FMSHRC 

since August 2009; also served as chairman of the FMSHRC from 

1994 to 2001, and as a commissioner from 2001 to 2009. 
3 

So, we welcome all of you. I thank you all for your written statements. I’ve gone over those beforehand. But, what I’d like to ask 

first of all, all your statements will be made a part for the record 

in their entirety. I would ask if you could each, as we go in line, 

if you could sum up, in 5 or 6 minutes, the main thrust of your 

statement, I would appreciate that. And then we can get into a discussion. 

So, Mr. Main, welcome I would say ‘‘back to the subcommittee,’’ 

but I guess you appeared before my other Committee 3 weeks ago. 

So, welcome to this subcommittee. Please proceed, Mr. Main. 

STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY OF 

LABOR FOR MINE SAFETY AND HEALTH, MINE SAFETY AND 

HEALTH ADMINISTRATION, DEPARTMENT OF LABOR 

Mr. MAIN. Thank you, Mr. Chairman. 

Chairman Harkin and Vice Chairman Cochran, and members of 

the subcommittee, I want to thank you for the opportunity to appear before the subcommittee today and speak about the efforts 

that MSHA has made in the wake of the disaster at the Upper Big 

Branch mine. 

I want, again, to express my deepest condolences to the families, 

the friends, and the coworkers of the 29 miners who perished in 

the Upper Big Branch mine on April 5. I have been having quite 

a few meetings with the families to understand what their concerns 

are. our prayers are with them. 

Some have said the Nation should expect and accept a certain 

number of fatalities every year in coal mining. We, at the DOL and 

MSHA, do not agree with that. And we believe that the tragedy at 

the Upper Big Branch mine did not have to happen. 

Given that this is an appropriation hearing, I understand that 

we will be discussing an increase in MSHA’s budget. But, I want 

to make very clear, however, the needs are more than money. No 

matter what resources the Congress is willing and able to appropriate, MSHA cannot be in every mine, every day, on every shift, 

nor should it be. It is the responsibility of mine operators to comply 

with the MINE Act and mandatory health and safety standards to 

avert injury, disease, and death. And only when we change the culture of safety throughout the mining industry, and all mine operators live up to their responsibilities, will all miners be safe. 

The resources are critically important. The additional resources 

that the subcommittee appropriated for MSHA, in the wake of 

Sago, Darby, and Aracoma explosions and fires, made an important 

contribution to increasing mine safety in this country. And the additional inspectors hired meant that, for the first time in years, 

MSHA has been able to complete all its mandated inspections. The 

actions of this Congress are very important. 

But, we need new resources, including new enforcement tools to 

leverage the improved inspection capability into a meaningful deterrent for operators, like Massey, that choose not to take their responsibility for the safety of its miners. Some of the new tools we 

intend to use are directed at creating incentives for operators to 

improve safety practices to prevent fatalities and injuries. Our goal 

is to create a system in which mine operators find and fix violations and abate hazardous conditions. We will propose a rule to reinstitute the requirement for preshift examinations for violations of 
4 

all mandatory health or safety standards. And we’ll solicit information on requiring the use of comprehensive health and safety management programs. 

Improving protection for whistleblowers would be an important 

tool in identifying dangerous practices and violations before fatalities and injuries occur. Miners must feel free to identify problems 

and insist that they be fixed, without fear of reprisal. 

MSHA must also have subpoena power to obtain information for 

timely investigations. The rules and adjudicative procedures to 

compel operators to remedy hazards must be strengthened. These 

include redesigning the Pattern of Violations Program and reducing the backlog at the FMSHRC. We have begun the process of redesigning how the Pattern of Violations Programs will work in the 

future and making it more effective. We have asked the FMSHRC 

to expedite review of high priority cases that will help us establish 

pattern of violations status for chronic bad actors. We’re also 

issuing new regulations to simplify the criteria for placing mines 

into the Pattern of Violation Program. In addition, we will address 

the backlog by making the citation process more objective and consistent and improving the conferencing system. My colleague, SOL, 

Patricia Smith, will describe other efforts that MSHA and her office are undertaking to improve the adjudication of cases before the 

FMSHRC. 

We believe that these measures will have a positive effect on reducing the backlog. The President has committed to reducing the 

case backlog, and we appreciate that you share this priority. 

We also appreciate that you recognize that, to the extent that 

funding is provided to increase the number of FMSHRC judges, additional resources are needed for DOL to effectively bring cases before these new judges. In providing those resources, it is important 

that the DOL have the flexibility to determine the optimal mix of 

SOL and MSHA staffing and sufficient time to train and deploy the 

new staff. 

MSHA also needs the flexibility to ratchet up the power of our 

enforcement tools when we are dealing with the worst of the worst. 

As the laws stand now, we have limited civil and criminal tools to 

bring chronic scofflaws to justice. I am gratified that the Justice 

Department is pursuing a serious criminal investigation into the 

events that led to the Upper Big Branch mine disaster. We have 

learned, in the wake of the Upper Big Branch mine disaster, that 

our resources—our resource needs are not limited to our enforcement activities. MSHA needs additional tools to respond to mine 

emergencies, including funding for investigations, hearings, and 

public forums examining the Upper Big Branch disaster. This will 

likely be the most extensive and costliest investigation in the history of MSHA, and we need to ensure that it is done well and does 

not drain resources from other critical enforcement activities. 

MSHA mine rescue teams must be equipped to respond quickly 

and effectively, when time is of the essence, in reaching possible 

survivors of a mine explosion, fire, or entrapment. I saw firsthand 

the need for better communications systems during the rescue at 

Upper Big Branch. MSHA also lacks the necessary inventory of 

portable testing equipment, such as gas chromatographs, to be able 

to examine a mine’s atmosphere. MSHA must also strengthen 
5 

logistical emergency response capabilities in the Western United 

States. 

Another issue is the need for MSHA to make organizational 

changes in southern West Virginia, an area with the highest concentration of underground coal mines in the Nation. MSHA is considering a plan to split district 4 into two separate management 

and administrative functions. Another critical need MSHA hopes to 

meet is human testing of refuge chambers that miners may need 

to rely on in an emergency, that was part of the new MINER Act. 

PREPARED STATEMENT

In closing, I appreciate the steps that the Senate Appropriations 

Committee took last week in providing supplemental appropriations for mine safety, and look forward to working in the development of your regular appropriations bill. We owe it to our brave 

miners to do everything we can to ensure that they come home 

safely at the end of every shift. 

Again, I appreciate the opportunity to appear here today, and 

look forward to working with this subcommittee. 

Thank you. 

[The statement follows:] 

PREPARED STATEMENT OF JOSEPH A. MAIN

Chairman Harkin, Vice Chairman Cochran, and members of the subcommittee: 

Thank you for the opportunity to appear as a witness before this subcommittee and 

speak to you about the efforts of the Mine Safety and Health Administration 

(MSHA) to protect the health and safety of the Nation’s miners. I am joined today 

by Solicitor of Labor (SOL) Patricia Smith, who will be testifying about the role of 

the SOL in enforcing the Nation’s mine safety and health laws, and in particular 

about the backlog of cases pending before the Federal Mine Safety and Health Review Commission (FMSHRC). 

I would like to once again express my deepest condolences to the families, friends 

and co-workers of the 29 miners who perished in the Upper Big Branch (Upper Big 

Branch) mine on April 5, 2010, as well as the surviving miners. Our prayers are 

with all of them. 

The Upper Big Branch mine explosion was the worst mining disaster since the 

creation of MSHA by the Federal Mine Safety and Health Act of 1977, and the deadliest mining disaster this Nation has experienced in nearly 40 years. This tragic 

event is a call to action. As the President said of the 29 miners who lost their lives 

on April 5, ‘‘we owe them more than prayers. We owe them action. We owe them 

accountability. We owe them an assurance that when they go to work every day, 

when they enter that dark mine, they are not alone. They ought to know that behind them there is a company that’s doing what it takes to protect them, and a government that is looking out for their safety.’’ 

Every worker has a right to a safe and healthy workplace. And every worker has 

a right to go home at the end of his or her shift and to do so without a workplace 

injury or illness. Workplace fatalities—even in an industry like underground coal 

mining—are preventable. No one should die for a paycheck. 

Some have said this Nation should expect and accept a certain number of fatalities every year in coal mining. The Department of Labor (DOL) and the MSHA 

could not disagree more strongly. Explosions in coal mines are preventable. The 

tragedy at the Upper Big Branch mine did not have to happen. It is the failure of 

mine operators to comply with the Mine Act and mandatory health and safety 

standards that can and does lead to injury, disease and death. We believe the history of repeated serious violations both at this mine and others throughout this 

country demonstrates that there are operations where mine management weighs the 

costs and benefits of complying with the law, rather than making responsibility for 

the safety and health of its miners their first priority. I welcome the opportunity 

to discuss with the subcommittee how we can work together to change this calculus. 
6 

EVENTS AT UPPER BIG BRANCH

First, I would like to share with you a short summary of what happened on April 

5, 2010 at Performance Coal Company’s Upper Big Branch Mine—South (Upper Big 

Branch) in Montcoal, West Virginia. The mine operator of Upper Big Branch is 

Massey Energy Company, whose CEO, Don Blankenship, will be testifying on the 

next panel. We know that there was a catastrophic explosion in the mine at a shift 

change at approximately 3 p.m. The explosion killed miners in and around two 

working sections of the mine and those traveling from the working sections at the 

end of their shifts. 

In less than 3 hours, rescue teams were underground, responding to the disaster. 

Due to the extensive damage from the explosion, however, the rescue teams had a 

difficult time proceeding in the mine. Within 10 hours of the disaster, rescue teams 

had found 25 of the victims. Dangerous conditions in the mine delayed and hampered continuing rescue and recovery efforts. Mine rescue teams attempted to again 

enter the mine on April 7, 8, and 9. Each time they were forced to exit before the 

final four miners were found. Finally, on the evening of April 9, they were able to 

enter and found the final four miners. While we were able to recover all the victims, 

we are still working to ventilate the mine so that it is safe enough to enter the area 

of the explosion and conduct our physical investigation. 

While the cause of this specific explosion is still being determined, most mine explosions are caused by accumulations of methane, which can combine with combustible coal dust mixed with air. Historically, blasts of this magnitude have involved 

propagation from coal dust that becomes suspended in the air following an initial 

blast. 

I understand that this is an appropriations hearing and we will be discussing an 

increase in MSHA’s budget, but the needs are more than money. No matter what 

level of resources the subcommittee is willing and able to appropriate for MSHA, 

MSHA cannot be in every mine, every day, on every shift. Nor should it. It is the 

mine operator’s responsibility to provide a safe mine and to protect its miners 

whether an MSHA inspector is standing in that mine or not. Only when we change 

the culture of safety in the mining industry—and when all mine operators live up 

to their responsibilities—will all miners be safe. 

That is not to say that resources—both legal and fiscal—are not important. They 

are critically important. MSHA must have the resources and tools it needs to support its efforts to hold accountable mine operators who are not living up to their 

moral and legal responsibility to maintain a safe mine. 

The additional resources that this subcommittee appropriated for MSHA in the 

wake of the Sago and Darby explosions and the Aracoma fire made an important 

contribution to increasing mine safety. The additional inspectors that MSHA has 

hired since 2006 has meant that for the first time in years MSHA has been able 

to complete all its mandated inspections. We are finding more violations and requiring mine operators to abate them. 

ENFORCEMENT AT UPPER BIG BRANCH AND MSHA’S CURRENT ENFORCEMENT TOOLS

Since the Upper Big Branch disaster we have taken a new look at how we use 

our resources and tools and we are trying to use them as creatively, efficiently, and 

effectively as possible. For example, between April 19 and April 23, MSHA conducted blitz inspections at underground coal mines with a history of significant and/ 

or repeat violations of safety standards involving mine ventilation, methane, failure 

to conduct or adequately document examinations, and/or rock dusting. As a result, 

through use of enforcement tools that permit MSHA to close the areas of mines affected by particular hazards, we required six underground mines in Kentucky to 

suspend production until the violations were corrected. At those six mines, MSHA 

issued 238 citations, 55 orders, and 1 safeguard. At the mines we blitzed nationwide, MSHA issued 1,339 citations, 109 orders, and 6 safeguards. Finally, we have 

sued two of the six Kentucky mines for illegally providing advance notice of MSHA 

inspectors’ presence at the mine. 

MSHA’s history in the Upper Big Branch mine also demonstrates the kind of 

heavy presence that a beefed-up inspector corps allows MSHA to have at a troublesome mine. MSHA engaged in a multi-year effort to use the tools we had available 

to force Massey Energy to comply with the law and turn around its extensive record 

of serious safety and health violations at the Upper Big Branch mine. From 2007 

until today, MSHA has steadily increased its enforcement presence at Upper Big 

Branch mine. In 2007, MSHA inspectors were on-site at Upper Big Branch mine a 

total of 934 hours. In 2009, inspectors were on-site at the mine for a total of 1,854 

hours. 
7 

During all those hours of inspections, MSHA found and issued an increasing number of citations for ‘‘significant and substantial’’ (S&S) violations of the Mine Act, 

including an alarming number of citations and orders requiring miners to be withdrawn from the mine. In December 2007, MSHA informed the mine it could be 

placed into a ‘‘pattern of violations’’ status if it did not take steps to reduce its significant and substantial violations. If implemented, pattern of violations status 

would have given MSHA a powerful enforcement tool, enabling the agency to order 

the withdrawal of miners from any area with S&S violations until such violations 

were fixed. However, Massey was able to successfully avert these consequences by 

reducing the levels of serious violations thereby avoiding being classified in a ‘‘pattern of violations’’ status. 

Upper Big Branch mine again experienced a significant spike in safety violations 

in 2009. MSHA issued 515 citations and orders at the mine in 2009 and another 

124 to date in 2010. MSHA issued fines for these violations of nearly $1.1 million; 

although most of those fines are being contested by Massey. 

The citations MSHA has issued at Upper Big Branch have not only been more 

numerous than average, they have also been more serious. More than 39 percent 

of citations issued at Upper Big Branch in 2009 were for S&S violations. In some 

prior years, the S&S rate at Upper Big Branch has been 10–12 percent higher than 

the national average. 

In what is perhaps the most troubling statistic, in 2009, MSHA issued 48 withdrawal orders at the Upper Big Branch mine for repeated actions that violated safety and health rules. Massey failed to address these violations over and over again 

until a Federal mine inspector ordered it done. The mine’s rate for these kinds of 

violations is nearly 19 times the national rate. 

NEEDED REFORMS AND RESOURCES

As you can see, MSHA is doing what Congress instructed it to do with the postSago increase in resources. It is inspecting mines and issuing citations for the violations it finds. When I came on the job in October, I made a commitment to do it 

better, more forcefully, and smarter. As I mentioned earlier, however, citations and 

orders alone will not solve the problems that we face. We need resources—both legal 

and fiscal—to leverage those citations and orders into a meaningful deterrent for 

operators like Massey that choose not to take responsibility for the safety of its miners. 

Now, I would like to share with the subcommittee what we are doing to make 

our enforcement efforts as effective as possible and what Congress can do to support 

those efforts and remove existing obstacles. 

First, I believe that we must create incentives for operators to improve safety 

practices to prevent fatalities and injuries. To achieve this goal, we need a system 

in which mine operators have programs and procedures in place to fix violations and 

abate hazardous conditions. Our spring regulatory agenda is focused on regulations 

that will require companies to take responsibility to find and fix problems before 

they are discovered by MSHA. 

Thus, we will be proposing a rule to reinstitute the requirement for pre-shift examinations for violations of mandatory safety and health standards in areas of underground coal mines where miners work or travel. I have been telling the mining 

industry since I became Assistant Secretary of Labor for MSHA that they must take 

more responsibility for the safety and health of the miners at their mines. That 

starts with fulfilling their responsibility to inspect their mines to make sure they 

are operating in compliance with the mine safety and health laws and regulations. 

In addition, we announced that we are moving forward to solicit information on 

requiring the use of a comprehensive health and safety management program in the 

mining industry. We believe that these measures will help prevent unsafe and 

unhealthy conditions from threatening workers. 

Next, we must improve our ability to identify dangerous practices and violations 

before fatalities and injuries occur. MSHA is not (and cannot be) in every mine, 

every day, on every shift. That is why it is so important for workers to have a voice 

in raising concerns with their employer or reporting conditions to MSHA without 

fear of reprisal, and for MSHA to have more tools to deal with mine operators who 

engage in ‘‘catch me if you can’’ tactics. Just last month, concerned individuals demonstrated the importance of the role of workers and the public in addressing safety 

concerns, when they notified MSHA inspectors in three separate anonymous complaints about hazardous conditions at three Massey-owned coal mines in West Virginia. Especially troubling is that one of the complaints came just days after the 

explosion at Upper Big Branch Mine. At one mine, the anonymous complaint reported that Massey was unlawfully running two continuous miners on a single split 
8 

of air, violating its MSHA-approved mining plan by removing more coal than authorized, and failing to report several face methane ignitions (small explosions) to 

MSHA. Another anonymous complaint at a different mine reported water blocking 

an escapeway used to evacuate the mine in emergencies. When MSHA made unexpected inspections in the evening, and in two cases captured the mine phones preventing calls underground to warn of the inspection, inspectors found a number of 

illegal mining practices. Those included: mining of coal several feet beyond legal 

limits; mining without air movement to prevent mine explosions and exposure to 

dust levels that can cause black lung; inadequate rock dusting, which is a critical 

protective measure to prevent coal dust explosions; blocking of miner escapeways by 

accumulated water; inadequate mine examinations by the mine operator; and mine 

roof conditions exposing miners to roof fall hazards. Following each investigation, 

MSHA issued several closure orders requiring the withdrawal of miners from designated areas of those mines until the hazards were abated and it issued multiple 

citations for serious violations. 

Clearly, laws protecting miners who want to come forward need to be strengthened. While someone came forward in these three cases, too many others will not 

or cannot out of fear of endangering their jobs and their families’ livelihoods. A 

number of current and former Massey employees have publicly stated that miners 

at Upper Big Branch who reported hazards to the company or MSHA risked losing 

their jobs, sacrificing pay, or suffering other adverse actions. While we will thoroughly investigate these troubling claims, we also need to examine how we can 

change the law to put these fears to rest. 

Miners must feel free to identify problems and insist they be fixed without fear 

of reprisal. MSHA must have the tools it needs to obtain information for timely investigations when miners report hazardous conditions, as well as the tools to protect 

miners who are discriminated against for reporting such conditions or otherwise exercising their rights under the Mine Act. MSHA must also have increased tools to 

respond to the ‘‘catch me if you can’’ mine operators who blatantly disobey the law, 

exposing miners to injury, illness and death when they think or know MSHA will 

not be there. 

Next, we must improve the rules and adjudicative procedures to compel operators 

to remedy hazards. As you know, the President has committed to reducing the large 

and growing case backlog at the FMSHRC. The well-documented shortcomings of 

the current pattern of violations process and the unconscionable backlog of cases at 

the FMSHRC demonstrate that it is too easy for even the worst offenders to avoid 

the heightened enforcement status envisioned by Congress. 

Following my confirmation as Assistant Secretary of Labor for Mine Safety and 

Health, fixing the pattern of violations program became a top priority. Since the 

Upper Big Branch disaster, we have spent a considerable amount of time at MSHA 

reviewing pattern of violations, as well as the other tools available to MSHA to enforce the law. It has become clear to me that we need bold action by both MSHA 

and the Congress to solve this problem. 

The pattern of violations program has received a great deal of attention in the 

aftermath of the Upper Big Branch disaster. MSHA has the authority to place a 

mine into a ‘‘pattern of violations’’ category, which under current policy is based on 

a number of criteria including the number of serious violations the operator has 

amassed within a 24-month timeframe. If a mine ends up in a ‘‘pattern of violations’’ status, MSHA can issue withdrawal orders for every serious violation until 

each violation is fixed. The ‘‘pattern of violations’’ program should be one of MSHA’s 

most serious and effective tools for holding bad actors, like Massey Energy, accountable, but it is not. MSHA’s experience at the Upper Big Branch mine demonstrates 

the program’s limitations under current procedures. 

Massey Energy employed a popular tactic at Upper Big Branch used by mines 

with troubling safety records to avoid potential pattern of violations status. Massey 

Energy contested large numbers of their significant and substantial citations. In calendar year 2009, the Massey Energy Company received proposed penalties that totaled in excess of $13.5 million, and contested $10.5 million of those penalties, or 

78 percent. MSHA uses only final orders to establish a pattern of violations. It takes 

more than 600 days for the average contested citation to reach the ‘‘final order’’ 

stage from the day the citation is written. The delay is due largely to a more than 

16,000 case backlog at the FMSHRC. 

Even if an excessive contest strategy fails and a mine ends up in a ‘‘potential pattern of violations’’ status, an operator can almost always avoid the ultimate ‘‘pattern 

of violations’’ label with temporary improvements in safety. The current system allows an operator to avoid going into a pattern of violations status if the operator 

reduces its S&S violations rate by more than 30 percent within 90 days or brings 

it below the national average for mines of similar type and size. Upper Big Branch 
9 

mine did this in 2007 and avoided a pattern of violations status by reducing S&S 

violation rate by 30 percent, even though its number of S&S violations remained 

above the national average. The policies this administration inherited make it relatively easy for operators like Massey to avoid pattern of violations status. In fact, 

MSHA has been able to place only one mine into pattern of violations status since 

passage of the 1977 Mine Act, and that order was revoked when two of the violations on which it was based were thrown out through the contest process. 

We realize the current pattern of violations program is broken and must be fixed. 

As I said, we believe that there are two components to fixing the problem: (1) redesigning the program, and (2) reducing the FMSHRC backlog. I believe that both 

MSHA and the Congress have a role to play in addressing each component. 

MSHA has already begun the process of redesigning how the pattern of violations 

program will work in the future and making the program more effective. We are 

asking the FMSHRC to expedite its review of cases whose adjudication to final order 

status is necessary to get bad actor operators into pattern of violation status. In addition, in our regulatory agenda, we announced that we will be issuing new regulations to simplify the criteria for placing mines into the pattern of violations program. There are fundamental challenges in the pattern of violations program that 

may need legislative fixes and I look forward to working with the Congress on developing those. 

As it now stands, the backlog at the FMSHRC is a major impediment to the effective use of the pattern of violations program and to MSHA’s ability generally to hold 

mine operators accountable for safety and health violations. As of May 5, 2010, 

there were approximately 16,000 cases and 89,000 violations pending before the 

FMSHRC in some phase of the penalty contest process. There are approximately 

$209 million in contested fines pending. The average case takes more than 600 days 

to resolve from the time a violation is issued. I believe that we need regulatory, legislative, and budgetary action to solve this problem. 

At a hearing before the House Education and Labor Committee on February 23 

of this year, I outlined specific measures MSHA was considering to address the 

backlog problem. I do not believe that an increase in litigation alone can resolve the 

backlog problem. That’s why we are moving to improve the cases we bring to the 

FMSHRC and how we handle them once they are there. We will make the citation 

process more objective and consistent by simplifying the citation and penalty determination process and improving related training, improving the conferencing system, making greater use of the ‘‘closeout’’ inspection meeting after mine inspections, 

continuing to develop training programs and materials to aid mine operators with 

compliance and pursuing corporate-wide holistic settlements that require operators 

to implement meaningful health and safety programs. 

In addition, we look forward to working with Congress to change the incentives 

for mine operators to contest violations, such as requiring mine operators to put significant penalty amounts in escrow or to impose pre-judgment interest on penalties. 

We also hope that the FMSHRC and Congress will consider ways to simplify the 

FMSHRC’s processes. We also hope that these changes will slow down the rate of 

cases going into the FMSHRC’s pipeline. 

As long as it exists, the backlog diminishes the system of protections the Mine 

Act was designed to provide. It is an incentive for the ‘‘business as usual’’ attitude 

among operators who chose to contest violations as a cost of doing business instead 

of taking a proactive and responsible role in making their mines safer. The perception that a penalty can be delayed or settled on highly favorable terms because of 

the huge caseload at the FMSHRC encourages behavior that will cause the backlog 

to grow. 

To the extent that funding is provided to increase the number of FMSHRC judges 

additional resources will be needed for SOL and MSHA to staff the litigation and 

litigation support to effectively bring cases before these new judges. For example, 

if resources were provided to immediately increase the number of judges at the 

FMSHRC to 26, then the SOL and MSHA would require roughly an additional $26.6 

million above the fiscal year 2010 appropriation and the President’s 2011 budget request. 

While we believe an approach that tries only to litigate our way out of the backlog 

would be unworkable, combined with additional reforms, more resources for taking 

cases to trial would both reduce the backlog and enhance the effectiveness and implementation of other reforms. In providing those resources, it is important that the 

DOL have the flexibility to determine the optimal mix of SOL and MSHA staffing 

to scale-up FMSHRC litigation and case resolution and to adjust to changes in the 

mix of cases before the FMSHRC. And in order for the DOL to use new resources 

most effectively, we must be given enough time to train and deploy any new staff. 
10 

MSHA also needs the flexibility to ratchet up the power of our enforcement tools 

when we are dealing with the worst of the worst. As the law stands now, we have 

limited civil and criminal tools to bring chronic scofflaws to justice. I am gratified 

to know that the Justice Department is pursuing a serious criminal investigation 

into the events that led to the Upper Big Branch mine disaster. However, this isolated criminal investigation, which is still in its early stages, should not fool us into 

thinking that the Mine Act’s criminal and significant civil penalties are sufficient. 

Stronger civil and criminal penalties are needed to make sure that mine operators 

are not allowed to knowingly or persistently put the lives of miners at risk. These 

penalties should extend to individuals at all levels of management who make decisions about the safety of miners. Making these kinds of changes will serve as a powerful deterrent against making decisions that put miners at risk. I look forward to 

working with the Congress on developing these ideas. 

MSHA’S OPERATIONAL AND EMERGENCY RESPONSE NEEDS

Improving the health and safety of miners in light of both the lessons highlighted 

and the many questions raised by the Upper Big Branch disaster is not limited to 

the area of enforcement and legal reform. MSHA supports the provision of resources 

for a number of other needs critical to eliminating the most immediate risks to miners and for ensuring that MSHA can effectively respond to mine emergencies. 

One immediate need is to find out what happened at Upper Big Branch. We need 

to know what happened in that mine on April 5, but we also need to understand 

in the broadest sense how this could have occurred. We anticipate the investigations, hearings and public forums examining the Upper Big Branch disaster and the 

surrounding circumstances will be the most extensive and the costliest investigation 

in the history of MSHA. The accident investigation team is gathering evidence in 

advance of public hearings to examine the cause or causes of the explosion. MSHA 

will also conduct a public forum for family members to offer their thoughts about 

the explosion, the response, the investigation, and potential reforms, as well as a 

town hall style meeting to exchange ideas about health and safety at mining operations and to gather recommendations. In addition, MSHA will conduct an internal 

review and will have that internal review independently evaluated by a team selected by the National Institute for Occupational Safety and Health. MSHA needs 

to be able to provide the resources for all these activities without negatively impacting its ability to continue its regular enforcement activities, like its statutory inspections. 

MSHA needs better capabilities in responding effectively in mine emergencies, 

particularly when miners are trapped underground, and has identified some important needs. MSHA and mine rescue teams must be equipped to respond as quickly 

and effectively as possible when time is of the essence in reaching possible survivors 

of a mine explosion, fire, or entrapment. I have participated in numerous mine 

emergency responses in the time I have worked in the mining industry. The Upper 

Big Branch disaster was my first as Assistant Secretary. I was at MSHA’s mobile 

operations center at the Upper Big Branch mine, and saw firsthand the need for 

better communications systems to coordinate rescue efforts and exchange information and data while in the field. As in this case, mine rescues often occur in rural 

areas where cellular service does not work and time is of the essence in securing 

communication between the command center, the mine, and areas where boreholes 

are being drilled in an effort to contact trapped miners or improve air ventilation. 

MSHA also lacks the necessary inventory of portable testing equipment such as gas 

chromatographs, used to process air readings from a mine during an emergency, 

and the ability to transfer copies of mine maps and other technical data. 

MSHA supports funding for placing caches of essential equipment at all of the 

coal districts along with first response teams to further improve MSHA’s response 

time to emergencies. MSHA also sees a strong need to strengthen our logistical 

emergency response capabilities in the Western United States at our Price, Utah 

and Denver, Colorado facilities with better vehicles and communication and other 

equipment. 

There is more to be done regarding MSHA’s mine emergency response capability. 

The American people expect the Government to be responsive and effective in such 

emergencies, and, as I described above, the most recent tragedy revealed some areas 

where MSHA needs additional resources in order meet that expectation. 

Another issue is the need for MSHA to make organizational changes in southern 

West Virginia to ensure its existing resources get optimal use in an area with the 

highest concentration of underground coal mines in the Nation. Coal mine safety in 

southern West Virginia is covered by MSHA’s Coal Mine Safety and Health District 

4. MSHA is considering a plan to split district 4 into two distinct districts with sepa-
11 

rate management and administrative functions, and whether MSHA can better 

carry out its oversight of mine safety if it makes such a change. Of the Nation’s 

11 coal districts, district 4 has the most employees and the most significant workload with the smallest ratio of supervisory staff to line employees. Its workload is 

almost 50 percent higher than the next busiest district in many key indicators such 

as contested citations and plan approvals. In order for management to best be able 

to spot problem or potentially problematic mines and react responsively, it would 

seem that dividing this district into two districts of better manageable sizes would 

be the best approach. 

Another critical need MSHA hopes to meet is testing of the refuge chambers miners rely upon if trapped underground in a mine emergency. When Congress passed 

the MINER Act in 2006 after the Sago disaster it required underground coal mines 

to install what are commonly referred to as refuge chambers, where miners would 

have available breathable air, food, and water until help could arrive from the surface. The implementation of this requirement was a significant improvement in 

mine safety. However, some of the more common commercially available units have 

not been tested for human survivability. Such testing for survivability in extreme 

conditions such as heat from geothermal sources or a fire is a high-priority need. 

CONCLUSION

I appreciate the action that the Senate Appropriations Committee took last week 

in providing supplemental appropriations and I look forward to working in the development of your regular appropriations bill to ensure that we keep the President’s 

promise to have the Federal Government do everything it can to improve worker 

safety. Our Nation’s brave miners go to work every day to provide electricity to our 

homes and our businesses. We owe it to them to do everything we can to ensure 

that every miner—and every worker—comes home safely at the end of every shift. 

Again, I appreciate the opportunity to appear here today, and look forward to 

working with the subcommittee. 

Senator HARKIN. Thank you very much, Mr. Main. 

Now we’ll turn to our Solicitor of Labor, Ms. Smith. 

STATEMENT OF HON. M. PATRICIA SMITH, SOLICITOR OF LABOR, DEPARTMENT OF LABOR 

Ms. SMITH. Chairman Harkin, thank you for inviting me here 

today to discuss a matter of great concern to me, which is the role 

of the Solicitor’s office in holding mine operators accountable and 

the resources that my office needs to do that job effectively. 

But, as Assistant Secretary Main testified, the problem is fundamentally a health and safety problem. Mine operators must do 

a better job of eliminating unsafe conditions in the first place. If 

MSHA inspectors can find violations, then mine operators should 

be able to find them also, and fix them before there are injuries 

and deaths. 

Since the 2006 passage of the MINER Act, and since MSHA’s 

penalties increased in 2007, as you noted, many mine operators 

have dramatically increased their rate of penalty contests and citation contests. Mine health and safety is poorly served when the 

system is overwhelmed by high contest rates and cases are not decided promptly. But, as Assistant Secretary Main said, the problem 

can’t be fixed simply by litigating out of it; other reforms are needed as well. 

I want to recognize and thank the subcommittee for their work 

last week in moving closer to supplemental funding for the DOL 

and the FMSHRC. We understand that a single judge can dispose 

of approximately 500 cases a year. Our own statistics show that, 

under the current litigation process, the DOL uses approximately 

14 employees for each judge. That includes the Solicitor’s office, attorneys, MSHA conference litigation representatives, and support 

staff. So, to the extent that the FMSHRC is funded for additional 
12 

judges, the SOL’s office and MSHA will need a corresponding increase in resources. 

If resources were provided to immediately increase the number 

of judges at the FMSHRC to 26, the SOL’s office and MSHA would 

require, roughly, additionally, $26.6 million above the fiscal year 

2010 appropriation and the President’s 2011 year budget request. 

With any supplemental appropriation, we would request the flexibility to adjust the ratio of Solicitor’s attorneys, MSHA personnel, 

and support staff, based on the mix of cases before the FMSHRC. 

Also, hiring, training, and deploying attorneys and CLRs will require time. Ideally, we would like any new funds to be made available over a period of time. That will enable us to use the funds in 

the most efficient and cost effective way possible. 

I’ve gone into greater detail in my written testimony regarding 

what goes into the case preparation and to explain why MSHA litigation is so resource intensive. But, to fix the backlog problem over 

the long run, we’re going to need new tools, and I’d like to discuss 

a few of them. 

First, I’d like to note that the FMSHRC published, in the Federal 

Register this morning, a proposed rule on simplified case proceedings. And I fully support the concept of simplifying the 

FMSHRC’s adjudicatory proceedings. I believe that streamlining 

the process in appropriate cases will help the Solicitor’s office and 

MSHA use their resources more efficiently to resolve cases more 

quickly. 

In addition, we’ve supported a number of legislative reforms that 

would help improve the backlog and improve mine safety. Subpoena power in routine investigations in inspections is one reform 

that would greatly assist us. Another reform would clarify the proof 

needed to establish that a violation is significant and substantial. 

Under current FMSHRC case law, such a violation is difficult and 

resource intensive for us to prove. Still other reforms could provide 

financial disincentives for operators to contest cases by requiring 

them to put penalty amounts in escrow or to prepay or to pay prejudgment interest on final penalty amounts. 

We also support reforms in the pattern of violation process. 

MSHA’s regulatory agenda includes a rulemaking to revise the way 

MSHA determines what’s happening in pattern of violation cases. 

In the meantime, we have begun to file motions to expedite cases 

before the FMSHRC. We hope that expediting appropriate cases 

will remove another incentive that operators have to contest violations. And, for the first time, we’re working with MSHA to identify 

appropriate cases in which to file for injunctive relief against mines 

with a pattern of violations. 

In addition, I support MHSA’s plans to revise its penalty rules 

to simplify the categories on which penalties are based, such as the 

degree of operator negligence and the degree of gravity of the violation. By simplifying the penalty assessment process, we expect to 

see fewer issues on which MSHA and the operators can disagree 

and fewer contested citations. 

And there are some things that SOL can do to provide incentives 

not to contest cases. Operators must be dissuaded from contesting 

citations simply because they believe they can get their penalties 

reduced. In appropriate cases, we therefore may ask for an increase 
13 

in penalties in litigation so that operators understand that there 

are significant disincentives for filing frivolous contests, especially 

in penalty cases. 

I thank you for the opportunity to testify today. 

Resources are an important part of the problem, but so are the 

other issues that I talked about. 

[The statement follows:] 

PREPARED STATEMENT OF M. PATRICIA SMITH

Chairman Harkin, Vice Chairman Cochran, and members of the subcommittee: 

Thank you for inviting me here today to discuss a matter of great concern to me: 

the role of the Solicitor’s Office in holding accountable those mine operators who do 

not live up to their moral and legal responsibility to ensure mine workers’ safety 

and health and the resources the Solicitor’s Office (SOL) needs to carry out that role 

effectively. 

This problem is, fundamentally, a safety and health problem. The Mine Safety 

and Health Administration (MSHA) cannot be present at every mine at all times, 

nor should it be. Mine operators are the ones on the front lines of safety and health 

efforts, and they must do a better job of eliminating unsafe conditions in the first 

place. If MSHA inspectors can find violations, then mine operators should be able 

to find them, too—and fix them before they produce worker injuries and illnesses. 

As you’ve heard, MSHA has used the additional funding you’ve provided during 

the past several years to hire more inspectors, which has enabled the agency to perform 100 percent of its statutorily mandated inspections and to conduct spot inspections and special emphasis programs. With more inspections, MSHA has found more 

violations and issued more citations. It also has assessed higher penalties as a result of statutory and regulatory penalty increases. At the same time, however, many 

mine operators have dramatically increased their contest rates, which has resulted 

in delayed adjudications and mounting case backlogs. 

As you know, the President has committed to reducing the large and growing case 

backlog at the Federal Mine Safety and Health Review Commission (FMSHRC). 

Miner safety and health is poorly served when the system is overwhelmed by high 

contest rates and cases are not decided promptly. Backlogs and delays impede justice and dilute the deterrent effect that Congress intended civil penalties to have. 

But while litigation may have created the backlog, it cannot, by itself, eliminate it. 

As Assistant Secretary of Labor for Mine, Safety, and Health, Joseph Main said, 

this problem can’t be fixed simply by adding more money for lawyers, judges, and 

MSHA personnel to settle and litigate cases. 

You asked me to provide information regarding resources needed to support the 

anticipated increase in the number of administrative law judges of the FMSHRC. 

According to the FMSHRC’s fiscal year 2011 budget request, a single judge can dispose of approximately 500 cases a year. Our own statistics show that, under the current litigation process, the Solicitor’s Office utilizes approximately seven attorneys 

for each judge—and that does not include resources that MSHA expends on 

FMSHRCcases using its conference litigation representatives (CLRs). 

To the extent that the FMSHRC is funded for additional judges, the Solicitor’s Office (SOL) and MSHA will need a corresponding increase in resources. For example, 

if resources were provided to immediately increase the number of judges at the 

FMSHRC to 26, then the SOL and MSHA would require roughly an additional $26.6 

million above the fiscal year 2010 appropriation and the President’s 2011 budget request. With any supplemental appropriation, we would request that Congress provide us with the flexibility to adjust the ratio of SOL attorneys and support staff 

and MSHA CLRs and support staff based on the mix of cases before the FMSHRC. 

While we would begin to use any new resources promptly, hiring, training, and 

deploying attorneys and CLRs will require time. Ideally, we would want any new 

funds to be made available over a period of time that will enable us to use the funds 

in the most efficient, cost-effective way possible, or to have an understanding that 

any down payment in a supplemental appropriation would be followed by the resources in the regular appropriation to address what is clearly a multi-year process. 

As we begin to implement improvements in the way we handle FMSHRC cases, 

which would be designed, at least in part, to achieve greater efficiencies, we would 

hope to need fewer resources. 

Let me tell you a little about the process so that you can appreciate the workload 

involved. 
14 

Each FMSHRC case typically involves a number of citations issued to an operator 

during a single inspection or related inspections. Each contested citation must be 

litigated separately, including the violation itself, any special findings, and the proposed penalty. Our attorneys research and investigate each item and often find it 

is necessary to consult with MSHA inspectors and experts just to understand the 

unique worksites and the technologically complex processes that are at issue. 

Our attorneys also prepare and file with the FMSHRC all necessary legal documents, including the petition, answers to notices of contest and motions. They also 

engage in settlement talks, discuss settlement offers with MSHA, and draft and file 

motions to approve settlements. Until a case has settled, however, our attorneys 

must still do all the things necessary to prepare for trial, including identifying, locating, interviewing, and evaluating witnesses—including expert witnesses—as well 

as obtaining and analyzing ventilation or roof control plans, mine maps, dust samples, inspector notes, and photographs. 

Discovery—which takes place outside of court and generally without the involvement of a judge—can be especially time-consuming. A judge’s order setting discovery 

deadlines may take the judge a few minutes to prepare, but conducting the actual 

discovery—preparing interrogatories, requests for production of documents, and requests for admissions, responding to operator requests, and preparing for and defending depositions—can take weeks and sometimes months. Depositions themselves usually require costly, time-consuming travel. 

Of course trial preparation—drafting pretrial motions, preparing witnesses, negotiating with opposing counsel—is also resource intensive, and actual trials can last 

days and usually involve travel. Some trials require even larger amounts of time. 

For example, recently we went to trial on a case in which we litigated 29 separate 

significant and substantial violations in an attempt to establish that a Massey 

mine—the Tiller Mine—should be put on a pattern of violations. Six attorneys have 

worked more than 1,000 hours on that case, and more work may be required once 

a decision is issued. 

In addition to their own caseloads, SOL attorneys train CLRs and supervise their 

cases. We train MSHA inspectors in subjects such as evidence and courtroom procedures. And we analyze, in advance, all cases in which MSHA is considering individual agent liability, a ‘‘flagrant’’ designation, or a pattern of violations designation. 

More judges may, of course, be part of the backlog solution, but only if they are 

accompanied by more CLRs and SOL attorneys—and only if we have enough time 

to train and deploy them. To fix the backlog problem over the long run, we will need 

other tools as well. I’d like to discuss a few of them: —Simplified Commission Proceedings.—I support fully the concept of simplifying 

the Commission’s adjudicatory proceedings, which Chairman Jordan mentioned. 

Streamlining the process in appropriate cases can help reduce the backlog by 

resolving them quickly and efficiently. 

—Legislative Reforms.—We support a number of legislative reforms that could 

help reduce the backlog and improve mine safety and health. Subpoena power 

in routine investigations and inspections is one reform that would allow us 

more easily to obtain the evidence we need to resolve cases quickly. Another reform could clarify the proof needed to establish that a violation is ‘‘significant 

and substantial.’’ Under current FMSHRC case law, such a violation is difficult 

and resource-intensive for us to prove. Still other reforms could provide financial disincentives for operators to contest cases by requiring them to put penalty 

amounts in escrow while their cases are pending, or to pay pre-judgment interest on final penalty amounts. 

—Revise the Pattern-of-Violations (POV) Process.—MSHA’s Spring Regulatory 

Agenda includes a rulemaking to revise the way MSHA determines whether an 

operator has committed a pattern of violations. The proposed rule would reduce 

the current incentive for operators to contest violations in order to avoid final 

orders that count toward a pattern of violations. MSHA also is considering revising its internal policies for identifying operators for a potential pattern. SOL 

will work with MSHA to craft these new rules and policies. We also believe that 

legislative changes to the POV process may be necessary to make it more useful 

as a tool to address problem behavior in a more timely way, and look forward 

to exploring those changes with the Congress. 

—Develop Better Cases.—Good evidence, of course, is the key to strong cases. For 

example, recently we worked with MSHA to issue guidance that encourages inspectors to use cameras wherever possible to document violations. Commonsense steps like this can help reduce the number of facts at issue and lead to 

faster case resolutions. 

—Simplify Penalties.—SOL is planning to help MSHA revise its penalty rules so 

that the categories on which penalties are based—such as the degree of operator 
15 

negligence and the gravity of the violation—are simpler. By simplifying the penalty assessment process, we expect to see fewer issues on which MSHA and operators can disagree, and fewer contested citations. —Provide Incentives Not To Contest Cases.—Operators must be dissuaded from 

contesting citations simply because they believe they can get their penalties reduced. In some cases we therefore may ask for an increase in the penalties so 

that operators understand that there are significant disincentives to filing frivolous contests, especially in serious cases. 

Thank you for the opportunity to testify here today. The time is, indeed, right for 

reform. But for reform to be truly effective and achieve long-term case control, we 

must pursue a multi-pronged approach. Resources are an important prong, but administrative, regulatory and legislative reforms are essential for long-term solutions. 

I look forward to taking your questions. 

Senator HARKIN. Thank you very much, Ms. Smith. 

Now we’ll turn to Dr. Howard. 

Dr. Howard. 

STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR 

DISEASE CONTROL AND PREVENTION, DEPARTMENT OF 

HEALTH AND HUMAN SERVICES 

Dr. HOWARD. Thank you very much, Mr. Chairman. 

On behalf of everyone who works at NIOSH, we’d also like to express our condolences to the families of the miners who died in the 

Upper Big Branch disaster, and to all other mining families who 

have lost, tragically, their loved ones. 

These tragic losses underscores the importance of preventing 

mine disasters, which is the ultimate goal of NIOSH’s mine safety 

and health research. Since passage of the MINER Act in 2006, 

NIOSH has focused efforts in several different research areas, including coal dust explosion prevention, sealed area explosion prevention, belt fire prevention, deep cover retreat mining safety, improving communications and tracking capabilities, refuge alternatives during disasters, and improving respiratory protective 

equipment. 

But, a critical success factor in moving research from the laboratory to the mines is the ability to attract commercialization of the 

new technology. Mining, as an industrial enterprise, is a small economic market. Without regulatory incentives, the future commercialization of a new technology is often difficult and uncertain. 

An example of a successful commercialization of new technologies 

is the personal dust monitor (PDM). In 2006, NIOSH published an 

influential document, entitled ‘‘Laboratory and Field Performance 

of a Continuously Measuring Personal Respirable Dust Monitor.’’ 

NIOSH showed the monitor to be mine worthy, accurate, and a reliable realtime monitor that can provide miners and management 

with a powerful tool to prevent the overexposure of miners to respirable coal dust. The PDM has the potential to be used both for 

compliance and respirable dust sampling, and as an engineering 

control tool. 

A vital step in getting the PDM into daily use to protect miners 

through commercialization, though, was the initiation of a Federal 

regulation making permissible NIOSH and MSHA certification of 

the PDM for use as a compliance sampler in underground mines. 

Another promising technology that has the potential to save miners’ lives from coal dust explosions, in an era when finer and more 

explosive dusts are being generated by modern mining methods, is 
16 

the coal dust explosability meter (CDM), which would provide the 

mining industry with a means to accurately assess the hazard of 

coal dust explosability in realtime. NIOSH just prepared for publication a report called ‘‘Recommendations for a New Rock Dusting 

Standard to Prevent Coal Dust Explosions in Intake Airways.’’ 

NIOSH recommends a new standard, requiring that the total incombustible dust content by 80 percent in the intake airways of bituminous coal mines. NIOSH has based its recommendation on, 

one, explosion temperature thermodynamic limit models for coal 

and rock dust mixtures; two, extensive in mine coal dust particle 

size surveys; and, three, multiple explosion experiments at the 

Lake Lynn Laboratory. 

NIOSH has been aggressively pursuing commercialization of the 

CDM. Attempts to commercialize the CDM suffer from a lack of 

sufficient interest to support its manufacture because of the small 

market problem. The recent tragic events at the Upper Big Branch 

mine, however, have renewed interest in this technology. NIOSH 

has found a manufacturer with broad experience in commercialization of field instruments, and expects that the CDM will be commercially available in 2011. 

The MINER Act also established requirements for postaction 

communications and tracking. In response, NIOSH established, 

with its domestic and international partners, a comprehensive 

strategy and research program to develop new and enhanced existing communications and tracking technologies for postaccident applications in underground mines, a strategy designed to deliver improved postaccident functionality within the MINER Act timeframe 

while facilitating ongoing improvements to these platforms. The 

private sector developed additional technologies in parallel with 

NIOSH’s efforts. 

In 2006, virtually no MSHA approved communication systems 

that met the intent of the MINER Act were commercially available. 

Today, there are a suite of postaccident communications and tracking technologies commercially available. 

While none of these are perfect, these technologies, when used 

individually or in combination, have significantly improved 

postaccident functionality for mine workers. 

PREPARED STATEMENT

NIOSH has also made progress in the area of sealed area explosion prevention, through design practices and technology applications. For example, under the technology development mandate of 

the MINER Act, NIOSH developed and demonstrated a system to 

extract nitrogen gas from the mine atmosphere and inject it into 

a sealed area to render it inert or extinguish a fire. This compact 

system, designed for easy transport in coal mines, is now commercially available. 

NIOSH continues to work diligently to protect the safety and 

health of mine workers and thanks this subcommittee for their 

support. 

Thank you very much. 

[The statement follows:] 
17 

PREPARED STATEMENT OF JOHN HOWARD

INTRODUCTION

Good afternoon, Mr. Chairman and other distinguished members of the subcommittee. My name is John Howard, and I am the Director of the National Institute for Occupational Safety and Health (NIOSH), part of the Centers for Disease 

Control and Prevention, within the Department of Health and Human Services 

(HHS). I am accompanied by Dr. Jeffery Kohler, NIOSH Associate Director of Mine 

Safety and Health Research and Director of the Office of Mine Safety and Health 

Research (OMSHR), which was permanently established by the Mine Improvement 

and New Emergency Response (MINER) Act of 2006. 

The goal of NIOSH’s OMSHR is the elimination of mining fatalities, injuries, and 

illnesses through research and prevention. Collaborations with its stakeholders, 

which encompass industry, labor, and Government, provide a knowledgeable and diverse foundation for formulating a relevant research portfolio that addresses the 

most pressing mine safety and health issues of our time. So, Mr. Chairman, you can 

imagine the anguish and frustration that OMSHR, its partners, and I experienced 

when the disheartening news of the Upper Big Branch Mine explosion broke on 

April 5. While the specific causes of this latest tragedy will not be known until the 

Mine Safety and Health Administration (MSHA) completes its investigation, this explosion already serves as a poignant reminder of the need to maintain a focus on 

the prevention of mine disasters through research and safety interventions. 

A review of mine disasters over the last decade, including those at the Sago mine, 

the Darby mine, and at Crandall Canyon, reveals that no two mine disasters are 

identical. With most mine disasters, a number of precipitating factors occur concurrently to create conditions to cause a calamity. Some of these factors are within 

human control even if others are not. To consider simultaneously all permutations 

of factors that may contribute to a mine disaster is impractical; however, we know 

that eliminating one of the factors may prevent or at least mitigate the effects of 

a catastrophe. For example, a mine explosion requires a fuel source (such as methane or coal dust), a minimum concentration of oxygen to support combustion, an explosive mixture of the fuel with air, and an ignition source. All contributing factors 

do not have to be eliminated to prevent an explosion. In fact, an explosion can be 

avoided if any single factor is removed. The key to preventing catastrophes is to 

identify and eliminate the controllable common thread through technology and engineering interventions. 

I will now present an overview of NIOSH’s on-going research and accomplishments that primarily relate the mandates of the MINER Act and disaster prevention. Since I have begun to address the topic of mine catastrophes, I will start with 

an overview of our disaster prevention projects, then move on to disaster response. 

DISASTER PREVENTION

Coal Dust Explosion Prevention.—NIOSH will soon complete an important report 

on the explosion hazard implications of finer dusts that modern mining methods 

generate. This report of investigation, called ‘‘Recommendations for a New Rock 

Dusting Standard to Prevent Coal Dust Explosions in Intake Airways,’’ recommends 

revision to the current minimum requirement of 65 percent for incombustible content in dusts found in intake airways. The report is in the final stages of review. 

NIOSH is aggressively pursuing commercialization of the Coal Dust Explosibility 

Meter (CDEM). The CDEM provides the mining industry with a means to assess 

accurately and in real time the hazard of coal mine dust explosibility. Recent mine 

disasters have renewed interest in this technology, and NIOSH has found a manufacturing partner with broad experience in the manufacture and marketing of field 

instruments. The CDEM will be commercially available next year. 

Sealed Area Explosion Prevention.—The 2006 explosions at the Sago and Darby 

mines were due to the existence of explosive atmospheres within sealed areas of underground coal mines. Preventing this condition from occurring is a priority under 

the technology development mandate of the MINER Act, so NIOSH developed and 

demonstrated a system to extract nitrogen gas from the mine atmosphere and inject 

it into a sealed area to render it inert or extinguish a fire. This compact system, 

designed for easy transport in coal mines, is now commercially available. 

Improving Coal Mine Seals.—In 2007, NIOSH released an influential Information 

Circular called ‘‘Explosion Pressure Design Criteria for New Seals in U.S. Coal 

Mines,’’ that established a scientific basis for upgrading the design requirements for 

seals in underground coal mines. Since that publication, NIOSH has engaged in further research, including cooperative research with the Naval Research Laboratories 

and the U.S. Army Corps of Engineers, to improve methods for evaluating seal de-
18 

signs. When completed, this research will provide a sound engineering foundation 

and enhanced tools to evaluate seal designs to ensure they will provide adequate 

protection to miners. 

Belt Fire Prevention.—As directed by section 11(A) of the MINER Act, NIOSH initiated research in response to the report, ‘‘Technical Study Panel on the Utilization 

of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in 

Underground Coal Mining.’’ This research has included full-scale testing of belt materials to validate the Belt Evaluation Laboratory Test (BELT) as a means of evaluating the fire resistance of belt materials. Research is continuing to evaluate the efficacy of current standards for water-based suppression systems as well as alternative systems used to control fires over the range of belt air velocities. The research is also investigating new approaches in early detection of belt fires and improvements to mine fire modeling software to assess the potential impact of a fire 

on escape routes. NIOSH is communicating results of this work directly to MSHA 

and to mining stakeholders through industry conferences and publications. 

Mine Atmospheric Monitoring.—Continuous monitoring of gas concentrations in 

sealed and active gob areas (mined out areas made up of caved in rock) would allow 

mine operators to identify changing conditions that indicate developing gas explosion or spontaneous combustion hazards. However, monitoring these areas with conventional electronic systems can introduce an ignition source to this potentially hazardous area of a mine. To address this problem, NIOSH procured a monitoring system, used in approximately 50 coal mines internationally, that continuously draws 

air samples from the mine through a network of tubing to a gas analyzer on the 

surface. NIOSH is currently demonstrating this ‘‘tube bundle system’’ at a longwall 

coal mine to serve multiple research goals including: 

—assessing combustible and toxic gas concentrations in real-time in the active 

areas of the mine; 

—monitoring for developing spontaneous combustion hazards in the active 

longwall gob to validate modeling software developed by NIOSH; and 

—documenting the mixing of gasses in a mine gob after completion of the longwall 

panel to improve ventilation design models. 

The tube bundle system also has the potential to remain in operation during response to certain mine emergency events without increased risk to rescuers. 

Ground Control Study of Deep Cover Retreat Mining.—NIOSH conducted, in collaboration with the University of Utah and West Virginia University, a study of the 

recovery of coal pillars through retreat room and pillar mining practices in underground coal mines at depths greater than 1,500 feet. This study was of special interest following the tragedy that occurred at the Crandall Canyon Mine. NIOSH has 

investigated the safety implications of retreat room and pillar mining practices, with 

emphasis on the impact of full or partial pillar extraction mining and has developed 

recommendations and research requirements for addressing the safety issues of 

ground control under these mining conditions. At NIOSH’s request, MSHA is reviewing this study, and NISOH expects that the study will soon be completed. 

DISASTER RESPONSE

Contracts and Grants Program.—As mandated in section 6 of the MINER Act, 

NIOSH established a contracts and grants program that funds the development and 

adaptation of safety technologies for mining applications. Under this program, 

NIOSH has funded 29 proposals. This year NIOSH received an additional 38 proposals, which are undergoing technical review. Awards for the most meritorious proposals are expected this fiscal year. In addition, NIOSH established a contracts program for mine ventilation research and capacity building to expand the number of 

trained professionals which work in this area. The contracts are designed to support 

research, exploratory development, testing, or evaluations of innovations and new 

technologies to improve mine health and/or safety in the area of mine ventilation. 

NIOSH has awarded seven 5-year contracts for ventilation research to universities 

throughout the United States. 

In addition, NIOSH established an Inter-Agency Working Group to provide a formal means for Federal Government agencies to share technology that can be applied 

to mining safety. The working group includes representatives from NIOSH, MSHA, 

the National Aeronautics and Space Administration (NASA), the Naval Research 

Lab, the U.S. Army Engineering and Research Center, Sandia National Laboratory, 

and a number of additional research labs or offices within the Departments of Defense, Energy, and Homeland Security. 

The NIOSH Contracts and Grants Program can be divided into three primary 

areas as defined by the MINER Act: communications and tracking, refuge alternatives, and self-contained self-rescuers. 
19 

Communications and Tracking.—The MINER Act established requirements for 

postaccident communications and tracking and charged NIOSH with developing and 

improving mine safety technologies. Furthermore, each coal mine was required to 

submit an emergency response plan, which incorporates postaccident communications and tracking, to MSHA within 3 years of the enactment date. In 2006, virtually no MSHA-approved communications and tracking systems that met the intent of the MINER Act were commercially available. 

In response NIOSH established with its domestic and international partners a 

comprehensive strategy and research program to develop new, and enhance existing, 

communications and tracking technologies for postaccident applications in underground coal mines. This strategy is designed to deliver improved postaccident 

functionality within the MINER Act timeframe, while facilitating continuous improvements to these platforms. The private sector developed additional technologies 

in parallel with NIOSH’s efforts. 

NIOSH categorizes its communications research into two major areas—Primary 

Systems and Secondary Systems. Primary Systems operate in conventional radio 

bands, use small antennas that permit wearable transceivers with long battery life, 

and provide sufficient throughput for routine, daily mine communications. Secondary Systems operate in nonconventional frequency bands, use large antennas 

that are best suited for fixed or portable applications, and do not have sufficient 

throughput for everyday mine communications. Thus, Secondary Systems are primarily intended for emergency use. 

Primary Systems include leaky-feeder systems, which use perforated coaxial cables to carry radio signals, and node-based communications, which employ a network of nodes using a digital format. Becker/Pillar and Innovative Wireless/L3, respectively, developed the systems under NIOSH contracts. The node-based system 

serves a dual purpose of communications and tracking. Both leaky-feeder and nodebased systems have been installed, tested, and demonstrated in underground mines 

and are now MSHA-approved and commercially available. 

Primary Systems require an in-mine infrastructure that is inherently vulnerable, 

so their survival after a catastrophic event depends on redundant communications 

paths. In nonproduction areas of a mine, direct paths to the surface are accessible 

only via shafts and boreholes. These alternative paths are not readily available 

within working sections; therefore, in-mine redundancy of communications pathways, although less effective, must be used. 

Secondary Systems include medium-frequency systems, which use the metallic 

structures within the mine to transmit signal, and through-the-earth systems, 

which exploit wireless options. These systems require minimal infrastructure and 

thus have better chances for survival after an emergency event. A NIOSH contract 

awarded to Kutta/U.S. Army produced a medium-frequency system, while contracts 

awarded to Lockheed Martin, E–Spectrum, Alertek, Teledyne Brown Engineering, 

Stolar, and Ultra Electronics are directed toward the development of through-theearth systems. 

A Secondary System cannot support routine mine communications because of limited throughput. Though it does not provide wide-area coverage, it provides an alternative communications path out of the mine (i.e., it substitutes for a borehole in a 

working section). Ideally, a Secondary System provides a backup, emergency channel for a Primary Communications System. 

The medium-frequency system has been successfully tested and is in the MSHA 

approval process. Through-the-earth systems are still in the development stage. Although successful preliminary testing has occurred, the principal challenge is designing a system that can support two-way communications at power levels that are 

low enough to meet MSHA approval requirements. Despite the technological obstacles, NIOSH will continue to support advances in these critical technology areas. 

NIOSH is planning to perform long-term, targeted research to address information gaps in communications and tracking. Identified gap areas include the safety 

issues of distributed and isolated batteries in communication and tracking systems, 

performance measurement and estimation techniques, compatibility considerations, 

and electromagnetic signal propagation in mining environments. 

Refuge Alternatives.—In response to MINER Act mandates, NIOSH has successfully conducted extensive research into the utility, practicality, survivability, and 

cost of various refuge alternatives in an underground coal environment. This research, through both in-house and contract efforts, included field tests of approved 

and commercially available refuge chambers. Sharing information is an important 

part of the response to the MINER Act; thus a NIOSH–MSHA Working Group was 

established to facilitate the flow of information and to enhance NIOSH research efforts. NIOSH prepared a report detailing the results of this research and providing 

specific recommendations that could inform the regulatory process on refuge alter-
20 

natives. In December 2007 NIOSH delivered the report to the Secretary of Labor, 

the Secretary of HHS, the Senate Committee on Health, Education, Labor, and Pensions, and the House Committee on Education and the Workforce. 

NIOSH has also addressed the training issues associated with refuge alternatives 

and has developed individual training products on topics such as the decisionmaking 

process of when to use a refuge chamber, operational guidelines for instructional 

materials, and how to use a refuge chamber. Significant work is needed in the area 

of expectations training, and NIOSH has a first module nearly completed in this 

area. State and Federal efforts resulted in the introduction of refuge chambers throughout the underground coal industry. However, alternatives to chambers such as an 

in-place shelter were left largely untouched and a range of chamber operational 

questions remain unknown. As a result, mineworker confidence in these chambers 

is low, and the value of this potentially lifesaving technology remains undetermined. 

NIOSH has evaluated international best practices in self-escape and mine rescue 

operations to identify opportunities to improve U.S. mine preparedness. NIOSH researchers identified the value of introducing improved realism in mine rescue training and the importance of behavioral health issues in preparing miners and rescuers 

for response to an emergency. Researchers identified the need to improve training 

facilities and to use more standardized training and procedures in order to improve 

the ability of teams from different mines to work together during emergencies. 

NIOSH has communicated these findings at a number of industry events and 

worked directly with mine rescue teams to initiate change. 

Self-contained Self-rescuers.—The NIOSH research and evaluation program for 

self-contained self-rescuers (SCSRs) addresses new technology, standards for certification, training, and testing of mine-deployed SCSRs. 

New Escape Respirator Technology.—NIOSH awarded a contract to Technical 

Products, Inc. (TPI) in February 2007 to design and fabricate an oxygen-supplying 

SCSR with ‘‘piggy-back’’ technology to allow a trapped or escaping miner to replenish his oxygen supply while underground. The new SCSR design includes a docking 

port mechanism that allows the user to plug in additional oxygen units without 

opening the breathing circuit to the potentially poisonous atmosphere. The docking 

port requires that a second oxygen unit be plugged in before the valve can be repositioned to the alternate port. In addition to this docking capability, the escape respirator employs a new chemical technology for removing carbon dioxide from the exhaled breath. This new chemical technology will facilitate lower breathing effort by 

the user and be more capable of withstanding the rigors (shock, vibration, and 

rough handling) encountered in daily use. Other innovative materials and design 

features make the new escape respirator easier to manufacture and more comfortable to wear and use. 

Under the same contract, TPI also developed a new technology filter self-rescue 

respirator for use in carbon monoxide atmospheres. The new filter self-rescue technology uses a catalytic process to remove carbon monoxide, resulting in longer protection from a smaller filter than current filter self-rescue technology. The new filter 

self-rescue respirator can be docked with the escape respirator to provide protection 

in atmospheres where the only hazard is carbon monoxide. 

The designer and manufacturer of the new respirator technologies is expected to 

apply for NIOSH certification. In addition to the contract work on the docking escape respirator system, NIOSH has been working to increase awareness of other escape respirator technologies commercially available and used in other countries. 

Standards for Certification Evaluation and Testing.—On December 10, 2008, 

NIOSH published in the Federal Register a proposed regulation for certification, 

evaluation, and testing of closed-circuit escape respirators. The proposed regulation 

would replace current certification evaluation and test requirements identified in 42 

Code of Federal Regulations, part 84. The proposed regulation would enable stateof-the-art technology for both test and performance of escape respirators. In 2009, 

NIOSH held two public meetings to discuss the proposed regulation and opened a 

docket to enable interested parties to provide comment. NIOSH is currently reviewing the comments submitted to the docket and expects to submit a final rule this 

fiscal year. 

User Training for SCSRs.—NIOSH conducted a research project to evaluate the 

effectiveness of SCSR user training programs developed by NIOSH in collaboration 

with MSHA. In 2009, NIOSH worked with 11 mines and 2 mine training centers 

to conduct the training effectiveness evaluation on 461 miners. NIOSH and MSHA 

are now analyzing the training effectiveness evaluation and expect to complete the 

analysis this year. 

Testing of SCSRs.—In 2007, NIOSH redesigned the Long-Term Field Evaluation 

(LTFE) Program for SCSRs to change the focus from a research program to a res-
21 

pirator certification audit program. The LTFE Program redesign includes a valid 

sampling strategy to select SCSRs from mines for testing, uses defined evaluation 

performance criteria with a documented test protocol, and incorporates a procedure 

for conducting follow-through actions based on evaluation results. The redesigned 

protocol was peer-reviewed and discussed at two public meetings prior to implementation. NIOSH also established an open comment docket for stakeholder comments. 

In May 2009 NIOSH launched the redesigned LTFE, starting with the collection 

of SCSRs from mines following a random sampling plan using the MSHA SCSR inventory. As of March 2010, NIOSH had collected 259 SCSRs from 153 mines, and 

had tested 173 SCSRs following the redesigned protocol. Collected and tested SCSRs 

represent respirators from each of the four models currently used in mining operations. Following the new protocol and performance criteria, one respirator model 

exhibited the same test failure on two respirators. The failures are under investigation to identify the cause and to determine corrective actions. 

Although this hearing is focusing on disaster prevention, everyday mine workers 

face a risk of injury or occupational illness. Advances in engineering and training 

interventions, developed in partnership with labor, industry, and Government, have 

made significant reductions to nonfatal and fatal traumatic injuries. Yet more still 

needs to be done to approach a zero harm goal. NIOSH has a balanced research 

portfolio to address injuries in areas including ground control, electrical safety, and 

materials handling. In addition to developing solutions to specific problems, NIOSH 

is examining the advantages and limitations of additional approaches such as improving the safety culture and employing risk assessment methods. 

Occupational exposures to noise and respirable dusts can result in unacceptable 

health outcomes for workers. For example, more than 70,000 coal miners have died 

with black lung disease over the past 40 years. NIOSH has a major research focus 

on the development of engineering controls to reduce exposures to dusts and noise, 

and has successfully developed and introduced many of these into the mines. Perhaps the most significant event, however, is the successful implementation of the 

personal dust monitor—a technology that will, for the first time ever, allow 

mineworkers to know their exposure to coal dust in real time, then enabling operators to make changes to the engineering controls that can reduce miners’ exposure. 

I would like to conclude by summarizing our work on this life-saving technology. 

Personal Dust Monitor (PDM).—In 2006, NIOSH published an influential document entitled, ‘‘Laboratory and Field Performance of a Continuously Measuring Personal Respirable Dust Monitor.’’ This document proves the personal dust monitor 

(PDM) to be a mine-worthy, accurate, and reliable real-time dust monitor that can 

provide miners and mine management with a powerful tool to prevent the overexposure of underground coal miners to respirable dust. The dust monitor is built into 

the miner’s cap lamp system and provides real-time dust exposure data. The PDM 

has the potential to be used for compliance respirable dust sampling and as an engineering control tool. Significant progress has been made on advancing PDM technology into underground coal mines in the United States. Key developments are as 

follows: 

—NIOSH and MSHA jointly developed 30 CFR part 74—Certification of Continuous Personal Dust Monitors. This regulation enables NIOSH and MSHA to 

certify PDMs for use as a compliance sampler in underground coal mines. The 

effective date of this regulation is June 7, 2010. NIOSH and MSHA expect to 

receive soon a request from the manufacturer to certify the PDM for U.S. mine 

compliance sampling. 

—MSHA is modifying how coal mine dust is sampled under 30 CFR parts 70, 71, 

and 90, covering, respectively, dust sampling procedures, dust control plans, 

and special sampling for miners with evidence of black lung. NIOSH has been 

providing significant technical assistance on the appropriate application of the 

new PDM technology in underground coal mines. 

—The Personal Dust Monitor Management System software package was recently 

developed and tested. A June 2010 release is anticipated. This software collects, 

secures, and stores PDM data in an easily accessible data base and can produce 

reports in a variety of formats based on the needs of the end user. 

In July 2009, the PDM commercial manufacturer, Thermo Scientific, began commercial sale of the PDM. From an initial production run of 122 units, 81 were sold 

to mining companies and are currently in use. Thermo Scientific has received orders 

for an additional 100 units from mining companies and is building the units. 

NIOSH researchers are also tracking the performance of these units around the 

United States. 
22 

CONCLUSION

In closing, NIOSH continues to work diligently to protect the safety and health 

of mine workers. The most recent mine disaster underscores the relevance of past 

NIOSH work and continued need for further safety and health research. NIOSH has 

made significant improvements in the areas of communication and tracking, oxygen 

supply, and refuge alternatives. Moreover, NIOSH’s safety and health research program is addressing the critical areas identified by our customers and stakeholders, 

and through research, development, demonstration, and diffusion activities, NIOSH 

is enabling a shift to a prospective harm reduction culture in the mining industry. 

I appreciate the opportunity to present NIOSH’s work to you and thank you for your 

continued support. I am pleased to answer any questions you may have. 

Senator HARKIN. Thank you, Dr. Howard. 

Now we turn to Ms. Jordan. 

STATEMENT OF MARY LU JORDAN, CHAIRMAN, FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, WASHINGTON, DC 

Ms. JORDAN. Thank you for the opportunity to testify on the 

backlog currently facing the FMSHRC. 

The need to eliminate this backlog has taken on even more crucial significance since the tragic explosion at the Upper Big Branch 

mine on April 5. All of us at the FMSHRC are profoundly saddened 

by the deaths of the miners there, and our thoughts are with their 

families, friends, and the surviving miners. 

The FMSHRC currently has more than 16,000 pending cases at 

the judge level. This is a marked departure from our historical 

caseload figures. During the 4 years from fiscal year 2002 through 

2005, the annual caseload ranged from approximately 1,300 to 

1,500 cases. In comparison, during the subsequent 4 years, the 

caseload climbed from 2,700 to more than 14,000. 

Due to the backlog, the age of the cases that the FMSHRC decides has increased. For example, in fiscal year 2008, 72 percent of 

the cases were decided by administrative law judges within 1 year, 

23 percent were decided within 1 to 2 years, and 5 percent of the 

cases were more than 2 years old by the time they were issued. 

So far, in fiscal year 2010, cases under 1 year of age constituted 

only 20 percent of the dispositions, 62 percent were from 1 to 2 

years old, and 13 percent of the decided cases were more than 2 

years old. We expect this lengthening trend to continue as long as 

an extensive case backlog remains. 

The current backlog has significant ramifications. Several important enforcement provisions of the MINE Act depend upon the determination of an operator’s history of violations. That history is 

based on violations that are final, which occurs only at the completion of the FMSHRC’s review process. Thus, if case decisions are 

delayed, MSHA’s ability to effectively enforce the Act is inhibited. We have, pursuant to our $10.3 million budget appropriation for 

fiscal year 2010, added four new administrative law judges to our 

previous roster of 10. We also added four new law clerks to assist 

the judges. If funding remains just at this 2010 level, we predict 

a case backlog of approximately 18,200 cases by the end of the fiscal year. The President’s 2011 budget request of $13.1 million 

would allow us to add 4 more judges, for a total of 18, and would 

permit us to stem the growth in the backlog. 

As you know, the President has committed to reducing the backlog. There are different ways to meet this goal. For example, immediately increasing the number of administrative law judges to 26 
23 

would cost roughly an additional $5.3 million above the fiscal year 

2010 appropriation and the President’s 2011 budget. At this level, 

we estimate that, assuming our current case intake level remains 

constant, we could reduce the number of FMSHRC cases—number 

of cases in the FMSHRC’s backlog—to less than 9,200 within 3 

years. 

If supplemental funding is provided, we recognize that we would 

need to hire new judges quickly. Yet, at the same time, if and when 

the backlog is reduced to an acceptable level, we may not need as 

many judges. We have identified two methods to achieve these 

goals. First, we have formally requested the Office of Personnel 

Management to ask other agencies to temporarily loan administrative law judges to us. Second, we plan to recruit senior administrative law judges, judges who have retired from Federal service, to 

work for the FMSHRC for a limited period of time. 

In addition to increased staffing, we’re examining our entire case 

adjudication system to determine how we can streamline procedures. On April 27, the FMSHRC published an amendment to its 

procedural rules. It requires the parties to submit a draft settlement order with their motion, and requires almost all of these submissions to be filed electronically. 

Today the Federal Register published our proposed rule initiating the simplified procedures process, similar to the one in effect 

at the Occupational Safety and Health Review Commission. Parties 

whose cases are placed in this track would be subject to mandatory 

exchange of information and early prehearing conferences. 

PREPARED STATEMENT

Finally, it’s important to note that both the significant increase 

in the numbers of FMSHRC judges, as well as some of the changes 

we are proposing in our administrative and rulemaking areas, will 

impact MSHA and the SOL. We are committed to working cooperatively with them to ensure that adjudication under the MINE Act 

may once again proceed swiftly. 

Over the years, this subcommittee has played a key role in ensuring that we receive sufficient funds to protect miner safety. I 

look forward to working with you to identify the resources needed 

to address the backlog. And thank you, once again, for this opportunity to testify on the issue. 

[The statement follows:] 

PREPARED STATEMENT OF MARY LU JORDAN

Chairman Harkin, Senator Cochran, and members of the subcommittee: Thank 

you for the opportunity to testify on the case backlog currently facing the Federal 

Mine Safety and Health Review Commission (FMSHRC). My name is Mary Lu Jordan, and I am Chairman of the FMSHRC. On behalf of the FMSHRC, I want to 

thank the subcommittee for its interest in identifying the resources needed to ensure the speedy adjudication of mine safety cases by eliminating the FMSHRC’s current case backlog. 

Of course the need to eliminate the backlog has taken on even more crucial significance since the tragic explosion at the Upper Big Branch mine on April 5, 2010. 

All of us at the FMSHRC are profoundly saddened by the deaths of the miners 

there, and our thoughts are with their families, friends, and the surviving miners. 

FMSHRC is an independent adjudicatory agency that provides administrative 

trial and appellate review of legal disputes arising under the Federal Mine Safety 

and Health Act of 1977 (Mine Act). The FMSHRC’s administrative law judges decide 

cases at the trial level. The five-member FMSHRCprovides administrative appellate 
24 

review. Currently, we have a full complement of commissioners, as our fifth member, Patrick Nakamura, was sworn in at the beginning of this month. 

The majority of cases that come before the FMSHRC involve civil penalties proposed by the Department of Labor’s Mine Safety and Health Administration 

(MSHA) to be assessed against mine operators. The FMSHRC’s administrative law 

judges are responsible for deciding whether the alleged violations of the Mine Act 

or a mandatory safety or health standard or regulation issued by MSHA occurred, 

as well as the appropriateness of the proposed penalties. To determine the penalty, 

the judges must make findings on a number of issues, including the seriousness of 

the violation and the negligence of the operator. Other types of cases heard by the 

FMSHRC’s administrative law judges include contests of MSHA orders to close a 

mine for health or safety reasons, miners’ charges of discrimination based on their 

complaints regarding health or safety, and miners’ requests for compensation after 

being idled by a mine closure order. 

Since the day I became Chairman of the FMSHRC, again, last August, I have 

been working with my staff to address our case backlog. As of April 30 of this year, 

we had a backlog of 16,580 cases. (As I mentioned previously, most of these are penalty contests, although approximately 20 percent of them are contests of underlying 

citations, which typically are stayed and then consolidated with the related penalty 

cases). In that backlog of pending cases are 9,650 cases (58 percent) under 1 year 

of age, 5,346 cases (32 percent) that are 1–2 years of age, and 1,584 cases (nearly 

10 percent) older 2 years of age. This significant case backlog is a marked departure 

from our historical caseload figures. 

For example, during the 4 years from fiscal year 2002 through fiscal year 2005, 

the annual caseload ranged from approximately 1,300 to 1,500 cases. In comparison, 

during the subsequent 4 years, from fiscal year 2006 through fiscal year 2009, the 

caseload climbed from approximately 2,700 to more than 14,000 cases. 

A comparison of new case filings during these same two time periods is also very 

instructive. From fiscal year 2002 to fiscal year 2005, the annual number of cases 

filed showed only a minimal increase, going from about 2,100 to 2,400 new cases 

per year. The figures after that paint a completely different picture, with case filings 

going from 3,300 new cases in fiscal year 2006 up to approximately 9,200 new cases 

in fiscal year 2009. 

Due to the backlog, the age of cases that the FMSHRC decides has increased. For 

example, in fiscal year 2008, 72 percent of the cases were decided by administrative 

law judges within 1 year, 23 percent were decided within 1–2 years, and 5 percent 

of the cases were more than 2 years old by the time they were issued. In fiscal year 

2010 (as of April 30), cases under 1 year of age constituted 25 percent of decided 

Commission cases, 62 percent were from 1–2 years old, and 13 percent of decided 

cases were older than 2 years. We expect this lengthening trend to continue as long 

as an extensive case backlog remains. The attached graph shows the dramatic increase in the average number of days it took our judges to dispose of cases between 

fiscal year 2001 and the first 7 months of fiscal year 2010. 
25 

Moreover, our judges’ dockets have increased dramatically. We assigned more 

cases, which moved the bulk of the backlogged cases to our judges’ desks. From fiscal year 2004 to fiscal year 2008, each judge’s docket averaged 176 cases. That number jumped to 366 cases in fiscal year 2009. As of April 30, 2010 (before our new 

judges were hired), the number of cases assigned to each judge was, on average, 

601. 

The FMSHRC’s current case backlog has significant ramifications. When Congress 

passed the Mine Act, it expressed concern that the penalty provisions of the Act cannot operate as an effective deterrent if there is an unduly long period of time between the violation and the payment of a penalty. The legislative history of the 

Mine Act emphasizes that ‘‘. . . [t]o be effective and to induce compliance, civil penalties, once proposed, must be assessed and collected with reasonable promptness 

and efficiency.’’ S. Rep. No. 95–181, at 43 (1977), reprinted in Senate Subcomm. on 

Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 631 (1978). 

Furthermore, an issue frequently raised since the explosion in West Virginia is 

that several important enforcement provisions of the Mine Act depend upon a determination of an operator’s history of violations. Penalties are calculated based, in 

part, on the operator’s history of violations. Moreover, MSHA’s ability to issue a 

withdrawal order because of a pattern of violations under section 105(e) of the Mine 

Act is not applicable under MSHA’s regulations, 30 CFR 104.3(b), until a violation 

becomes ‘‘final’’ which occurs only at the completion of the FMSHRC’s review process. Thus, if case decisions are delayed, MSHA’s ability to effectively enforce the act 

is inhibited. 

In addition, Congress intended that the case processing mechanism operate efficiently so that operators who dispute MSHA’s interpretation of a standard may obtain a speedy resolution. With a large and growing backlog of cases at the 

FMSHRC, operators often do not know in a timely manner whether their practices 

comply with mandatory safety or health standards or violate them. 

Today, I want to update you on steps we have taken to reduce this backlog, and 

on the work that remains to be done. Mindful of the recent mine disaster, we are 

determined to speed up our case processing to afford prompt, effective adjudication 

to the parties who appear before us. 

In terms of our actions to date, we have, pursuant to our $10.358 million budget 

appropriation for fiscal year 2010, added 4 new administrative law judges to our 

previous roster of 10 judges. Three have already joined the FMSHRC and the fourth 

will arrive next week. Under that appropriation, we also added four new law clerks 

to our current staff of five clerks to assist our judges. 
26 

If our funding remains at this level with this staffing (14 judges, 9 law clerks, 

and 9 legal assistants) for the rest of fiscal year 2010, we project a case backlog of 

approximately 18,200 cases by the end of this fiscal year. Thus, this level of funding 

would permit the backlog to grow. However, the President’s 2011 budget request of 

$13.105 million, representing a 27 percent increase over our fiscal year 2010 appropriation, would stem the growth in the backlog, once the new judges are trained and 

gain experience under the Mine Act. We would be able to add four more judges, 

which would bring our total to 18. We also could hire nine additional law clerks so 

that each judge would have the assistance of a law clerk, and each judge would 

share an administrative assistant with another judge. 

As you know, the President has committed to reducing the backlog. There are different ways to meet this goal. For example, immediately increasing the number of 

administrative law judges to 26 would cost roughly an additional $5.3 million above 

the fiscal year 2010 appropriation and the President’s 2011 budget. At this level, 

we estimate that, assuming our current case intake levels remain constant, we could 

reduce the number of cases in the FMSHRC’s backlog to less than 9,200 within 3 

years. Additionally, policy and process changes under consideration by the Commission—some of which I will discuss later—could allow us to more quickly reduce the 

backlog and case processing time. 

If supplemental funding is provided, we recognize that we would need to hire new 

judges quickly. Yet at the same time, if and when the backlog is reduced to an acceptable level, we may not need as many judges. We have identified two methods 

to achieve these goals: first, we have formally requested the Office of Personnel 

Management to ask other agencies to temporarily loan administrative law judges to 

us. As of right now, the Office of Personnel Management has approved three judges 

who could work for us on a temporary and intermittent basis. Second, we would recruit senior administrative law judges—judges who have retired from Federal service—to work for the FMSHRC for a limited period of time. 

In addition, we are mindful of the training needs of new judges, particularly those 

with no Mine Act experience. To that end, we have initiated a training program in 

which our senior judges assist the newly hired judges in learning about FMSHRC 

case adjudication and procedures. Also, by expanding the number of law clerks, we 

will provide additional support for our judges. 

But more resources are only part of the answer. In addition to increased staffing, 

we are continuing to examine our entire case adjudication system to determine how 

we can streamline procedures via administrative and rulemaking changes. 

For instance, because more than 90 percent of FMSHRC cases are ultimately settled, we have looked at ways to make that process more efficient, as much of the 

FMSHRC’s resources are used to process settlement motions and issue orders approving settlement. Until recently, the parties filed a motion to approve settlement, 

but the FMSHRC’s judges drafted the settlement order in each settled case. On 

April 27, 2010, the FMSHRC published an amendment to its procedural rules requiring the parties to submit a draft settlement order with their motion to approve 

settlement. 75 Fed. Reg. 21987. Furthermore, the rule requires almost all of these 

submissions to be filed electronically. These changes should reduce the resources expended by the FMSHRC judges in resolving settlement motions. 

We are also initiating a ‘‘simplified procedures’’ process similar to the one in effect 

at the Occupational Safety and Health Review Commission. The rules for cases 

placed on this track, which would be the simpler cases the FMSHRC receives, would 

provide for mandatory early disclosure of information and documents by the parties, 

and early prehearing conferences with a judge. Additionally, discovery and post-trial 

briefs would be severely limited, and interlocutory review is abolished. We submitted this proposed rule to the Federal Register on May 11, 2010 for notice and 

comment. 

In fiscal year 2008, the FMSHRC instituted a new electronic case tracking system, which allows us to more efficiently track the various stages of each case that 

we receive. Another ongoing project involves the electronic filing of cases and case 

documents. The FMSHRC is currently reviewing requirements for the electronic filing process to determine the best approach for implementing such a system. One 

of our commissioners is currently leading the project team working on this endeavor. The team’s initial work has been to visit and survey other adjudicative agencies 

which have electronic filing systems in place in order to gather information about 

how long it would take to institute such a system and the costs involved. 

Finally, it is important to note that both a significant increase in the number of 

FMSHRC judges (with the concomitant increase in the number of cases decided) and 

some of the changes we are proposing in our administrative and rulemaking arenas 

will impact MSHA and the Office of the Solicitor. We are committed to working co-
27 

operatively with them to ensure that adjudication under the Mine Act may, once 

again, proceed swiftly. 

We will continue to explore modifications to our procedural rules and case management procedures that might enable cases to move more quickly through the 

FMSHRC. We are committed to examining any and all ideas that can assist in adjudicating cases more rapidly. 

Over the years this subcommittee has played a key role in ensuring that we receive sufficient funds to protect miner safety. I look forward to working with you 

to remedy the problem of our case backlog and in identifying the resources needed 

to address it and thank you once again for this opportunity to testify on this issue. 

Senator HARKIN. Thank you very much, Ms. Jordan. 

Well, I note that the first bells have rung for the vote. I will wait 

until the second set well, a little bit before I recess. 

I did want to, thank you all for your testimonies and for all of 

the good work that you all do in your various capacities. 

But, I want to get to the heart of something here, Mr. Main and 

Ms. Smith. It just seems to me, from all I have read and the info 

that our committee’s looked at, that, under the current system, 

there seems to be every incentive for an operator to challenge just 

about every citation issued. They can take advantage of the long 

delays, put off paying any fines well into the future. Often these 

fines are substantially reduced, as a result of the contest process, 

even when the violations are fully supported by the evidence. 

So, what can we do? What would you suggest to this subcommittee that we have to do, legislatively? Now, we can put additional money into hiring more judges, but I’m not certain that’s 

going to do the job. They’re just going to have more cases filed. I 

have two questions. 

One question, Mr. Main, for you. We saw the increase in the 

number of citations in the last few years, and the backlog. Why is 

that happening? Why are we getting more and more citations? I 

thought mines were getting safer. I thought we had new technologies. And yet, it seems we’re getting more violations, more citations. 

And, Ms. Smith, if you could follow up on that, what should we 

do here to break that trend, rather than just hiring more judges? 

Is there something, legislatively, that we need to do? 

So, Mr. Main, why this huge increase in citations? 

Mr. MAIN. Thank you, Mr. Chairman. 

When I became the Assistant Secretary in October, that was a 

question that I raised, myself, and started looking into the history 

of the application of the MINE Act. And if you look at the progress 

of enforcement following the new MINER Act and other regulations 

and other activity that took place, which was the funding of additional inspectors that increased, I think, increases by about 20 percent of the number of inspectors on the ground, I think that had 

some impact with the additional inspections that took place. 

But, I also was really bothered by the fact that, you know, there 

was an increase of violations being cited. And I took a look at the 

a benchmark, to try to figure out why, because I heard the concerns about consistency and, you know, the new inspections and or 

new inspectors. I took a look at the statistics to see, are we citing 

actual violations? And what I found was that, on an average in 

2008, 2009, it’s about 175,000 violations were issued to the mining 

industry. And less than one half of 1 percent, in the last year I 

looked at, of the violations that were issued were vacated, which 
28 

is almost nothing. So, that meant that, basically, at least what had 

been through that process, those violations were violations. 

And I think, before we get into the type of violations, we have 

to stop there and say, ‘‘We’ve got a problem here. And what we 

need to do is have the mining industry take ownership of these 

mines, beef up their safety departments, get in there and start inspecting these mines and correcting these conditions.’’ 

And if you fast forward to the Upper Big Branch mine, with the 

number of violations that we were finding in the Upper Big Branch 

mine last year, I think that was the solution to the problem was 

for the mine operator to hire up their safety staff and get in there 

and get these violations cleaned up. 

So, I’m bothered by the number, and I think the number’s pretty 

solid. 

Senator HARKIN. Before I turn to you, Ms. Smith, then, obviously, there are some mines that are very safe? 

Mr. MAIN. Yes. 

Senator HARKIN. Hardly ever get violations, hardly ever have 

any accidents. Well, I hate to get in the position of saying, ‘‘A coal 

mine is a coal mine is coal mine.’’ Obviously, they differ, in terms 

of shaft sizes and depths and horizontal runs and a lot of different 

factors that go into that. But, you would think that we would have 

some standards based upon the success of certain mines, and make 

that applicable to all the mines. 

Mr. MAIN. I believe that mines that have a better safety management program have a better safety culture, have a better safety 

record. And believe that mines that lack those, don’t. If we look at 

Upper Big Branch last year we find that it had 48 unwarrantable 

failure orders issued—the most in the country. There are mines 

that operated last year with no unwarrantable failure violations 

issued. So, I think that you have to question the safety management programs that are in some of these mines. 

Senator HARKIN. Okay. So, Ms. Smith, what should we be doing, 

what can we do? 

Ms. SMITH. Well, Senator, I think that the answer to your question is a combination of administrative, regulatory, and legislative 

fixes. And on the legislative side, what we have to do is, basically, 

remove the penalties, I mean the incentives, to contest the penalties and the citations. 

One of the things that we would propose is prejudgment interest, 

because some operators will contest because they want the time 

value of money, and it delays the payment of the money; we need 

to reduce that. Some operators will contest because it delays the 

final order. 

And the history of a mine operator’s citations is relevant to a 

number of things. It’s relevant to the future penalties, because 

that’s one of the things that go into the penalties. It’s also relevant 

to pattern of violations. So, we have to look at the final order issue 

and see if we can take away that incentive. 

So, I think, ultimately, it’s taking away the incentives to contest 

that will help reduce it, and those are two legislative things. 

But, again, they have to be done along with regulatory fixes, 

along with administrative fixes. There is just no silver bullet to fix 

this backlog problem. 
29 

Senator HARKIN. Well, we probably thought, when we passed the 

MINER Act, that we had taken care of a lot of this stuff. And now 

it just keeps happening, and even worse. 

Ms. SMITH. I think that, you know, this is something about the 

law of unintended consequences. We’re now going to get a second 

chance to look at that and try to fix that. 

Senator HARKIN. Well, I can guarantee you, we are going to take 

a look at it. And we are going to do something to fix it. We just 

need to know, from the experts, just what course of action you 

think we ought to take. 

Now, I see we’re on the second bell, so—Dr. Howard, Ms. Jordan—I’m going to recess the subcommittee now, and go over and 

vote. And I will return, hopefully within the next 10 to 15 minutes. 

We’ll stand in recess for just a few minutes. 

The subcommittee will resume its sitting. 

We have been joined by the individual that I have admired so 

much for his leadership in so many areas, especially this Appropriations Committee, and his leadership in fighting so hard for our 

miners in this country. I can say this without any hesitation whatsoever. No one has done more for miners in this country than Senator Robert C. Byrd, of West Virginia. No one. And it’s just an 

honor to have him here today, because I know how deeply Senator 

Byrd cares about his people in West Virginia, and how he cares 

about miners everywhere. I’ve often said that I have such a great 

affinity for him because we both have coal miner’s blood in our 

veins, and we care very deeply about it. 

And so, it’s just a great honor to have you here, Senator Byrd. 

And I will yield to you for whatever statement and questions you 

might have for this panel. 

STATEMENT OF SENATOR ROBERT C. BYRD

Senator BYRD. Thank you, Mr. Chairman. 

I very much appreciate your holding this hearing. You and your 

staff, Senator, have been very gracious in accommodating my request for supplemental funding and for this oversight hearing in 

the wake of the terrible tragedy that took the lives of 29 coal miners in the coal fields of southern West Virginia. 

Nearly 2 months after that horrific explosion, I am perplexed— 

let me spell that—P-E-R-P-L-E-X-E-D—perplexed as to how such a 

tragedy on such a scale could happen, given the significant increases in funding and in manpower for the MSHA that have been 

provided by this subcommittee. 

Congress has authorized the most aggressive miner protection 

laws in the history of the world—history of the universe. But, such 

laws aren’t worth a dime if the enforcement agency is not vigorous 

about demanding safety in the mines. 

These laws are also jeopardized when the miners themselves are 

not incorporated into the heart of the inspection and enforcement 

process, as Congress intended for them to be. Now’s the time—long 

past the time—to cast off the fears, the cronyism, and other encumbrances that have shackled coal miners and MSHA in the past. 

Assistant Secretary Main and his team at the MSHA still have 

much to explain regarding this tragedy at Upper Big Branch that 

happened on their watch their watch. I don’t believe it was because 
30 

of a lack of funding. I don’t believe that MSHA lacked—L-A-C-KE-D—lacked enforcement authorities. I don’t believe that. 

Massey Energy officials, who bear the ultimate, final responsibility for the health and safety of their workers, still have much to 

explain to the country and to the families of the miners who perished. I cannot fathom how an American business could practice 

such disgraceful health and safety policies while at the same time 

boasting about its commitment to safety of its workers. I can’t understand that. 

The Upper Big Branch mine had an alarming record of withdrawal orders. Now, where on Earth—where was the commensurate effort to improve safety and health? Where was it? 

Presently, there are several ongoing investigations, including an 

ongoing criminal investigation an ongoing criminal investigation. 

Perhaps, so just maybe these will provide some solace and comfort 

to the families who are looking for accountability. 

PREPARED STATEMENT

Let us also hope that his hearing will provide information on the 

Government and company officials who should be held accountable 

and lead us to some additional steps that may be taken to avoid 

such horrific, such terrible loss of life in the future. 

[The statement follows:] 

PREPARED STATEMENT OF SENATOR ROBERT C. BYRD

Mr. Chairman, I very much appreciate your holding this hearing. You and your 

staff have been very gracious in accommodating my requests for supplemental funding and for this oversight hearing, in the wake of the terrible tragedy that took the 

lives of 29 miners in the coal fields of southern West Virginia. 

Nearly 2 months after that horrific explosion, I am perplexed as to how such a 

tragedy, on such a scale, could happen, given the significant increases in funding 

and manpower for the Mine Safety and Health Administration (MSHA), which have 

been provided by this subcommittee. 

In recent weeks, MSHA has announced so-called inspection blitzes. MSHA has announced new rules concerning preshift examinations and pattern violators, and has 

displayed a new-found willingness to use injunctive relief to close dangerous mines. 

It is tragic that miners had to perish in order to precipitate such enforcement. The 

Congress has authorized the most aggressive miner protection laws in the history 

of the world, but such laws are useless if the enforcement agency is not vigorous 

about demanding safety in the mines. 

These laws are also jeopardized when the miners themselves are not incorporated 

into the heart of the inspection and enforcement process—as Congress has intended 

them to be. Now is the time—in fact, long past the time—to cast off the fears, cronyism, and other encumbrances that have shackled coal miners and MSHA in the 

past. 

Assistant Secretary Main, and his team at MSHA, still have much to explain regarding this tragedy at Upper Big Branch (UBB) mine, which happened on their 

watch. I do not believe it was because of a lack of funding. I do not believe that 

MSHA lacked enforcement authorities. 

Massey Energy officials, who bear the ultimate responsibility for the health and 

safety of their workers, still have much to explain to the country and to the families 

of the miners who perished. 

I cannot fathom how an American business could practice such disgraceful health 

and safety policies while simultaneously boasting about its commitment to the safety of its workers. 

The UBB mine had an alarming record of withdrawal orders—where was the commensurate effort to improve safety and health? 

Presently there are several ongoing investigations, including an ongoing criminal 

investigation. Perhaps these will provide some solace to the families who are looking 

for accountability. Let us also hope that this hearing will provide information on the 

Government and company officials who should be held accountable, and lead us to 
31 

some additional steps which may be taken to avoid such horrific loss of life in the 

future. 

Senator HARKIN. Senator Byrd, thank you very much for a very 

profound statement, one that really gets to the nub of why we’re 

here. 

I had opened with some questions earlier, for Mr. Main and Ms. 

Smith. If you want to pose some questions, Mr. Chairman, I would 

yield to you for any questions you might have for Mr. Main. 

Senator BYRD. Thank you, Mr. Chairman. 

Yes, my first question is addressed to Assistant Secretary Main— 

M-A-I-N. Given the disturbing safety record—and I mean disturbing safety record—and the reputation of this particular mine, 

why oh, why, oh, why did MSHA wait until after the tragedy to 

launch an inspection blitz at coal mines with a history I mean, a 

history of pattern violations? 

Senator HARKIN. Mr. Main. 

Mr. MAIN. Senator, that’s a fair question, I think, from this body. 

I think, for those to understand why we did the blitzes we did is 

to make sure darn sure we had no other Big Branches that existed. 

Senator BYRD. Can you understand him? 

Senator HARKIN. I’m trying to listen. 

Say that again, Mr. Main. 

Mr. MAIN. I think that is a very fair question to be asked of us. 

And I can report why we did what we did, in terms of the blitzes, 

to make sure there were no other Upper Big Branches that existed 

with regard to conditions that pose those kind of threats. 

Senator HARKIN. Again, let me just emphasize. Senator Byrd’s 

question asked, Why did you wait until after this tragedy to launch 

this blitz of inspections, especially in a mine that had a pattern 

and a history of violations? 

Mr. MAIN. As we examine what we did, we’re going to take a 

look, to figure out what we did or didn’t do. I think that what was 

happening on the ground in West Virginia with the enforcement 

folks that were there, they were using the tools that they had been 

using constantly over the years, and a tool that has been somewhat 

useful, to a great degree, to help fix some of these problems; that’s 

the 104(d) closure orders. And as the record reflects, that mine did 

receive the most closure orders of any mine in the United States 

last year. And, you know, there’s a question, I think, on all of our 

minds, you know, What else could we have done there? 

In retrospect, you know, I think that the—there would have been 

more enforcement tools that were used, without anybody’s—without any question, at that mine. And having learned the lessons 

that we have from that experience, we don’t want to do anything 

to ever repeat them again. And I think that we’re struggling right 

now to figure out what tools we can grab out of the toolbag and 

create. And one of those is this 108 closure order—injunctive order 

that we’re looking at to move forward. It’s been in the MINE Act, 

I think, since 1969, and never used—and trying to find tools like 

that. 

We had the pattern of violations that—when we looked at it, it 

was basically a broken system. That law was passed by Congress 

after Scotia, in 1977. There hasn’t been one single mine ever put 

on the pattern of violations, except for one mine, for a short period 
32 

of time—and went to court and got off. That signals that we have 

shortcomings. 

Senator BYRD. Mr. Main. 

Mr. MAIN. Yes, sir. 

Senator BYRD. Why did MSHA wait until after the tragedy to 

launch an inspection blitz at mines that had a history of pattern 

violations? 

Mr. MAIN. Senator, the only thing I can say is that the agency 

didn’t do it. That’s something we have to take a look at and figure 

out—you know, that’s something we’ll look at and try to figure out 

what we did or didn’t do. 

Senator BYRD. Assistant Secretary Main and Solicitor Smith, 

aside from the health and safety laws, what unconventional remedies exist to deal with a rogue—R-O-G-U-E—rogue mining company that has a reputation for flouting in other words, waving its 

nose at the law? You want to answer that? 

Ms. SMITH. Senator, I would suggest that the criminal laws may 

be where your answer lies. And I know that we have been looking 

very carefully, and working with the U.S. Attorney, to see what can 

happen in that regard. Aside from the health and safety laws that 

you mentioned, I think that we really do have to look at the penal 

law. 

Senator BYRD. Mr. Main, I’d like to get your comment on that. 

Why—let me ask you again—why—aside from the health and safety laws, what unconventional remedies exist to deal with a rogue 

mining company that has a reputation for flouting the law? 

Mr. MAIN. In terms of dealing with a rogue operator and using 

the tools that we have at our disposal as a Federal agency, you 

know, there are tools that we are constantly developing, now, to do 

that. One is these blitz inspections. We’re looking at—and I don’t 

know if you’d call it ‘‘unconventional,’’ but it’s never been used before but—injunctive relief to go after and shut down mines that 

have records like Upper Big Branch, that we will be shortly proceeding in court with. We are looking at ratcheting up all the current tools that we have in our toolbag, to use those more effectively. 

I’ll tell you a little story that’s bothersome here. In the midst of 

the Upper Big Branch tragedy, we had calls from miners from 

three mines that got, apparently—I wouldn’t say ‘‘miners,’’ they 

were anonymous calls; I should clarify that—they got so fed up 

with the conditions that they were working in that they called 

MSHA. Two of them came in on March 25. One came in after 

Upper Big Branch. And miners complained about illegal practices, 

illegal mining systems, illegal ventilation, and coal dust in the 

mines that wasn’t taken care of. We sent inspectors to those mines 

on the afternoon shift. And people should expect a bit more of this. 

About 8 o’clock in the evening, we went to two of the mines, captured the phones, went underground, and found illegal conditions 

that are unbelievable in the 21st century. 

We are changing our tactics. We figure that some of these companies have us figured out pretty well, and we’ve got to change our 

tactics and do things unconventionally, to be able to go in and 

catch these mines when they’re violating the law. This was a 

Massey these were three Massey Energy mines. And these were 
33 

three Massey Energy mines where the conduct that we found could 

not be considered any more that outlawish. 

We have to change the way we do business. We have to get some 

new standards in place. We have to go after those who are operating like this. That’s the reason subpoena power, in terms of 

something we’re pursuing, is important. We have to give these miners a voice. Some of them are scared to death to speak out about 

conditions they’re stuck in. Having tools like that, we believe, are 

necessary to fix this problem. 

And I would point out, Mr. Chairman—I don’t know if I did—one 

of these complaints occurred after the Upper Big Branch disaster. 

Senator HARKIN. I will have a follow-up question, after the 

Chairman finishes, regarding why miners can’t feel more free, as 

whistleblowers, to make these kind of calls. 

Senator BYRD. In his testimony, Mr. Secretary, Mr. Blankenship 

states that MSHA certified the Upper Big Branch mine to be in 

good condition—quote/unquote, ‘‘good condition’’—prior to the April 

5 explosion. Mr. Blankenship says, ‘‘MSHA officials forced—F-O-RC-E-D—forced Massey engineers to accept an unsafe ventilation 

plan, and suggests that MSHA is trying to cover up its mistake in 

a secret investigation. Now, this sounds like someone is trying to 

blame your agency for the death of 29 miners. How do you respond? 

Mr. MAIN. Thank you, Senator. 

The first thing I’m going to say is that MSHA does not run—or 

did not run—the Upper Big Branch mine; Massey Energy did. They 

designed it. They hired the people. They conducted whatever examinations that they decided to conduct, whether that was in compliance with the law or not. But, they were the ones that operated 

the mine. 

With regard to us declaring this mine—certifying this mine as 

safe or good, MSHA does not certify mines as safe or good. So, I 

have no clue what the basis of that argument is. There is no doubt 

in my mind that the conditions in that mine were not good. And 

both our agency and others who take a look at this would take 

great issue with. 

As far as the ventilation plan is concerned, MSHA doesn’t design 

ventilation plans for mines. The process is that the mine operator 

drafts the plan, submits it to MSHA for approval. MSHA approves 

or disapproves the plan. 

And let me comment on that statement about the conditions, 

starting back in September, where MSHA had some so called ‘‘influence’’ over the crafting of Upper Big Branch’s ventilation plan. 

I want to walk through just a few issues that happened, to help 

set the record straight here, and give some understanding of what 

we’re talking about. 

On September 1, 2009, an inspector went into the Upper Big 

Branch mine, went back into the longwall area and found that the 

company was in the midst of a major air change. Under the law, 

when you make a major air change, you evacuate all the miners 

out of the mine. In this case, they had miners working on the 

longwall and other sections of the mine. The inspector also found 

that the air was reversed on this brandnew longwall that they were 

putting into place. That meant it was going in the wrong direction 
34 

and was not being ventilated. There was an airshaft that was put 

in on the back side of that longwall that was delivering about 

400,000 cubic feet of air, but for some reason, the mining company 

couldn’t figure out how to make that air work to ventilate that 

longwall face. This was a mine that was not being operated legally, 

endangering miners and—I would say, gravely endangering miners 

in functioning that way. And the inspector did what the inspector 

should have done: issued a closure order on the mine and ordered 

every miner out of that mine until they fixed it. 

Under our process, MSHA has the tools; they find a violation, 

they issue the appropriate enforcement action. And whether that is 

a citation or a withdrawn order, MSHA orders the violation it to 

be corrected. The company decides how they’re going to correct it, 

MSHA does not. But, they have to correct it to satisfy the order. 

In January 2010, MSHA goes back into the same longwall and 

finds that the headgate entry that ventilate not only this longwall, 

but a return off of another section, had deteriorated to the point 

it wasn’t travelable. The reason it deteriorated is, the company 

didn’t maintain the entry. It’s that simple. And what happened 

was, the air course that was coming off of a second section that was 

required by law to be traveled, couldn’t be traveled. MSHA issued, 

appropriately, an order on that mine, and ordered the mine to 

cease that activity until the conditions were fixed. 

This again placed the miners in grave danger in this mine, in my 

opinion. The mine operator was required to fix it. And the mine operator had to come up with its own options to fix the problem. 

But, these are the kind of conditions that we’re finding. It’s—and 

if the—if Massey or any other company asked MSHA to back off 

of an enforcement action because they don’t like it, MSHA’s not 

going to do that; we’re going to enforce the law. 

Senator HARKIN. Mr. Main, we’ll have Mr. Blankenship on the 

next panel. I’m sure we’ll get into that. I ask you to stay here during that period of time, after this panel is done to try to get to the 

bottom of this. 

I want to recognize Senator Murray. 

Mr. MAIN. Okay. 

Senator MURRAY. Mr. Chairman, thank you very much for having this hearing. I appreciate it. 

And, Ms. Smith, if I could start with you. You noted, in your testimony, that changes to pattern of violations process may be necessary to make it more useful as a tool to address problem behavior 

in a more timely way. I wanted to ask you if you believe that mine 

operators have taken advantage of the current pattern of violations 

process. 

Ms. SMITH. Well, I think that one of the incentives for the incredibly high increase in the contest rate we’ve seen is that under the 

current pattern of violation standards, until there is a final order, 

a violation doesn’t count against a pattern of violations. And we 

have seen, you know, a number of operators have avoided a pattern 

of violations because they have orders that are not final. 

Senator MURRAY. So, is there something we can do to change it 

so that this is taken seriously by mine operators? 

Ms. SMITH. MSHA is proposing regulatory changes, and we are 

working with the subcommittee to look at statutory changes, also. 
35 

Senator MURRAY. Okay. I look forward to seeing those. 

Ms. Jordan, in your testimony, you said that in 2008 your case 

backlog increased by 72 percent, and that, in fiscal year 2010, cases 

under 1 year of age constituted 25 percent of all cases decided by 

the FMSHRC; 62 percent were 1 to 2 years old; and 13 percent of 

decided cases were more than 2 years old. Is there pressure on administrative law judges to close cases, due to the backlog? 

Ms. JORDAN. Well, our judges—our productivity—we do keep 

records of how many cases are disposed of. I think that the judges 

are aware of the backlog, and I—the judges are very hard working 

and conscientious. I don’t think there’s pressure to not do a thorough job with what they need to do. But, they’re you know, it’s sort 

of balancing that those factors. There’s a backlog, but—and 

judges—we are taking steps to, you know, bring on assistants for 

the judges, clerks, and, of course, bringing on more judges. 

Senator MURRAY. But, people are looking whether you have a 

backlog or not. And—— 

Ms. JORDAN. Right. We also recently implemented a procedural 

change that would help speed things along and make it smoother 

for the judges. The majority of the cases get disposed of by means 

of settlement. The parties reach a settlement and they file a motion 

to approve the settlement with the FMSHRC. 

Senator MURRAY. So, over time, I would assume that means 

fewer fines? 

Ms. JORDAN. That—no, not necessarily. I mean, it—the parties 

reach a settlement and they file it with the FMSHRC. The 

FMSHRC judges review that settlement, and they are free to accept it or reject it. If they feel that it doesn’t comply with the statutory criteria or if there’s a departure from the amount of settlement 

that was originally proposed, the judge may, and sometimes does, 

ask—rejects the settlement and asks for an explanation, ‘‘Why has 

the Secretary accepted—you know, if they initially proposed a certain amount and now they’re settling the case at a different 

amount, what explains that difference?’’ and then has required the 

parties to come forward and explain that. 

We recently—until recently, our judges, though, has to draft the 

order that got issued, approving that settlement. And we’ve eliminated that step. We’ve now required the parties to file a draft order 

with their motion, and to do that electronically. And we hope that, 

you know, that change will help expedite some of these cases, too. 

Senator MURRAY. Okay. 

Mr. Main, Mr. Blankenship is known to believe that Massey Energy mines have been disproportionately targeted for mine inspections and MHSA citations. Does MHSA disproportionately target 

mines or issue citation frivolously? 

Mr. MAIN. Senator, I don’t think so. And I think that whenever 

you look at some of the conditions that are being cited and I just 

gave the recent example of three mines from which we have received anonymous complaints MSHA went in on the afternoon 

shift, captured the phones so they couldn’t call underground, and 

found the kind of conditions described in the complaint. Those are 

the kind of things that mean that we have to spend more time at 

mines like that. 
36 

Senator MURRAY. What kind of violations have you found at 

Upper Big Branch? 

Mr. MAIN. You know, I think there have been a range of violations. Of the ones we’ve talked about probably the most have been 

on the ventilation standards. Two of them I just talked about, 

which was finding the mine inadequately ventilated during inspections. There have been violations over combustible materials, which 

is coal that could cause fires and coal dust that could cause explosions. I think one of the things that we’re concerned about, in this 

particular case, was excess coal dust in this mine—and we’re going 

to check that out, as part of the investigation. But, these are the 

kind of conditions you worry about. 

Senator MURRAY. Okay. Well, Mr. Blankenship said in his testimony that the changes recommended in the violation plan made 

the mine less safe. Can you speak to us about why the Upper Big 

Branch was made to update its ventilation system? You talked 

through that a minute ago. I was trying to follow it. If you could 

do that again. 

Mr. MAIN. Yes, Senator. I—from—I’m going to say this in the 

context that we’re still in the process of doing the investigation of 

the mine, and it’s going to be some time before we get all these 

facts together. 

But, in terms of some critical issues that I have looked at, in 

terms of some of the paper that was issued at the mine, to try to 

get a handle on that, we found that on September 1, for example, 

when an inspector went into the mine and found that they were 

making a major air change, with miners underground; you don’t do 

that. That’s a violation of the law that exposes miners to dangers, 

when you’re moving air around. They found that in the section 

the—one group of miners was working the air actually reversed, it 

wasn’t going in its proper direction. 

Senator MURRAY. So, the ventilation wasn’t working correctly. 

Mr. MAIN. It was not working. I think, to the extent that—in 

that case, if it’s going the wrong direction, it is just absolutely not 

working. 

And those are the kind of things that I think tend to make the 

agency concerned. And when you find that kind of attitude about 

safety, MSHA is going to be spending more time there. 

And I think if you look, historically, at that mine, the inspection 

time was doubled from 2007 to 2009. I wasn’t here as Assistant 

Secretary at the time, but I think when looking back, there was a 

reason for that. And the conditions we cited were reflecting a reason the agency needed to be in there more. 

Senator MURRAY. Okay. All right. Thank you very much. 

And thank you, Mr. Chairman. 

Senator HARKIN. Thank you, I just had one follow-up for Ms. Jordan. As you know, we just passed out of this subcommittee, last 

week, a supplemental appropriations bill. In that there is $3.8 million in funding for the FMSHRC. Now, I know that bill still has 

to pass the Senate. We hope to do that next week. Then we will 

get together with the House. But, sometime, probably within the 

next few weeks, that bill will be law. I think I can assure you that 

the money will be there. 
37 

My point in bringing this up is that it seems to me there may 

be two ways that you can approach using this money. You can hire 

fewer staff and stretch it out for a longer period of time, or can hire 

more staff right now and hope that there’ll be more money later on. 

I would hope that you would pursue the second course of action. 

You need personnel now. We are committed to making sure that 

the FMSHRC gets the funding that it needs. And we’ll work to retain this funding in fiscal year 2011, by going somewhat over the 

President’s request. So, I hope I’ve made myself clear on that. 

Ms. JORDAN. You have. Thank you, Senator. 

We, I agree with that approach. That, and we’ve been looking at 

just such an approach that would give us the flexibility, you know, 

to be aggressive in bringing on as much staff as we can. 

Senator HARKIN. Very quickly, Dr. Howard, can you tell me, 

what’s happened to the Lake Lynn experimental mine and why it 

hasn’t been reopened. 

Dr. HOWARD. Yes, Senator. I can answer the first part of the 

question. The Lake Lynn experimental mine, as you know, is an 

international research for safety and health. And certainly in terms 

of dust and gas explosion research, there really is no other laboratory in the world that can do that kind of research, in addition to 

in-mine rescue equipment research and ventilation studies, et 

cetera. So, every day that goes by without us having access to that 

mine is a day that we certainly are upset about. 

The Centers for Disease Control and Prevention and the Department of Health and Human Services are doing the best job they 

can, in terms of real property acquisition of the mine. As you know, 

there was a roof fall, recently, that blocked the entrance. We’ve 

been trying to work through that issue. 

We’d like to express our appreciation to you and the rest of the 

subcommittee for the interest in reopening that mine. It’s a difficult property acquisition. I’m not an expert in buildings and facilities in the Government, but it’s not your usual surface acquisition. 

We hope that we can activate the standstill agreement and reopen the lease of the mine and get back in there, perhaps excavate 

another portal, so that we can work around the area that the roof 

has fallen. 

Senator HARKIN. Well, I believe we have information on what it 

would cost to do that. But, you might want to follow up and give 

us an up-to-date estimate on what is required to reopen that mine. 

Dr. HOWARD. Will do. 

Senator HARKIN. I thank you very much. 

I thank this entire panel. Thank you all very much, for being 

here. Thank you for your testimony and you can all be dismissed. 

We’ll call our second panel up. 

Senator HARKIN. We welcome our second panel. 

Mr. Don L. Blankenship has served as the chairman, president, 

and chief executive officer of the Massey Energy Company, since 

November of 2000. He joined a Massey subsidiary in 1982, earned 

his accounting degree from Marshall University in Huntington, 

West Virginia. 

Our second panel witness is Mr. Cecil E. Roberts. He served as 

president of the UMWA for the past 12 years. Prior to serving as 

president of the UMWA, Mr. Roberts spent 13 years as vice presi-
38 

dent. Mr. Roberts received his degree from West Virginia Technical 

College in 1987, and, of course, has testified before this subcommittee several times over the years. And we welcome you back 

here to this subcommittee. 

Mr. Blankenship and Mr. Roberts, your testimony will be made 

a part of the record in its entirety. And if you could sum up the 

main points in 5 or 7 minutes or so, we would sure appreciate it, 

so we could get into a discussion. 

Mr. Blankenship, we’ll start with you. Welcome, again, to the 

subcommittee. And please proceed. 

STATEMENT OF DON L. BLANKENSHIP, CHAIRMAN AND CEO, MASSEY 

ENERGY COMPANY, RICHMOND, VIRGINIA 

Mr. BLANKENSHIP. Thank you, Mr. Chairman. I appreciate the 

opportunity to appear before the subcommittee this afternoon and 

to discuss the Upper Big Branch accident. 

No words can adequately describe the tragedy of April 5. I visited, personally, despite media reports, with most of the wives, children, parents, and family members of Massey who lost their lives. 

In these meetings, I extended to them my deepest sympathies and 

committed to do whatever I needed to do to attend to their needs, 

the needs of their—those who had lost their loved ones. I personally heard their expressions of grief and saw, in the eyes, unspeakable sorrow that they had. It’s too late to bring back those that we 

lost, but we must do everything we can to find out what happened 

and to do our best to keep it from happening again. 

Massey strongly supports the principle that the investigation at 

Upper Big Branch must be independent, honest, and aggressive. 

Transparency is an important element of the process. 

Senator BYRD. Mr. Blankenship, would you speak a little louder? 

Mr. BLANKENSHIP. Yes, sir. 

Senator BYRD. And clearly, into the microphone. 

Mr. BLANKENSHIP. I will pull it up here and try to help that. 

What I was saying is, that transparency is an important element 

of the process of the investigation. Massey Energy has joined with 

other stakeholders, including UMWA, in calling on MSHA to conduct this investigation through a public hearing, rather than 

through closed door sessions. 

Today, I want to address Massey’s overall commitment to safety, 

discuss our interactions with MSHA regarding inspections and appeals, and discuss ways that we can work together with MSHA to 

make mine safety and accident investigations more transparent. 

Let me state for the record, Massey does not place profits over 

safety. We never have and we never will. Period. From the day I 

became a member of Massey’s leadership team, 20 years ago, I 

have made safety the number one priority. The result has been a 

90 percent reduction in lost-time accidents, which has been better, 

often dramatically better, than industry average in 17 of the last 

19 years. Our safety innovations have been adopted by our competitors and been praised by MSHA. In fact, last year, MSHA honored Massey with an unprecedented three Sentinels of Safety 

awards, the highest safety award in the mining industry. 

Next, I want to talk about the issue of citations and appeals. 

First and foremost, abatement is mandatory. Even if a citation is 
39 

appealed, any deficiency must be corrected immediately. For most 

citations, the condition is corrected the same day. At Massey, we 

always fix the problem, even if we disagree with the punishment. 

Massey does not, quote, ‘‘game the system,’’ as some have insisted. 

Rather, we are exercising our right to due process under the system that Congress has put in place. 

We do not benefit from a system in which appeals are backlogged 

for months or years. And we urge Congress to appropriate the necessary resources that are necessary to make the appeal process 

work safely and quickly. 

At the Upper Big Branch mine, we work together with MSHA to 

address citations and to ensure that the mine remains safe. Between April and October 2009, 47 D orders, which are the most serious violations, were recorded at Upper Big Branch. That presented a challenge that we would not tolerate at Massey and did 

not ignore. In response, Massey convened a hazard elimination 

committee comprised of top managers, and reduced these violations 

about 80 percent. In fact, MSHA held its quarterly closeout meeting a few days prior to the explosion and determined that there 

was no major issues and that the mine was in good condition. Let 

me repeat, to make it clear, that, just days before the April 5 explosion, MSHA agreed that the Upper Big Branch mine had no major 

outstanding safety issues, and found the mine to be in good condition. 

At Upper Big Branch, we complied with MSHA safety orders 

even when we strenuously disagreed with them. In particular, we 

disagreed with MSHA’s ventilation plan for the Upper Big Branch 

mine. Against the advice of experts, MSHA required several 

changes, since September 2009, that made the ventilation plan 

much more complex. This change significantly reduced the volume 

of fresh air to the face of the longwall mining operation. Our engineers resisted making the changes in one instance, to the point of 

shutting down production for 2 days, before being forced to agree 

to MSHA’s changes. We opposed the changes because our engineers 

believed they made the ventilation system less effective, not because they were more costly or because they interfered with production. 

We do not know whether the ventilation system played a role in 

the explosion. And we do not know whether the modifications to 

that system, demanded by MSHA, played any role in the explosion. 

But, our disagreement with MSHA over the ventilation plan highlights what we believe is a fundamental flaw in the way this accident is being investigated. It is simply this: We do not think that 

MSHA should be permitted to investigate itself behind closed 

doors. How likely is it that MSHA will point the finger at themselves, if the evidence gathered in confidential interviews suggests 

that the actions their actions—contributed to the explosion? How 

do we know, if we don’t see the evidence and if MSHA investigates 

in secrecy? 

Other safety agencies don’t work that way. After an aircraft accident, the independent National Transportation Safety Board conducts its investigation in public. They look at both the airline operator and the Federal regulator. That is why we have called for 

open, public, and transparent investigations at Upper Big Branch. 
40 

PREPARED STATEMENT

In conclusion, Mr. Chairman, Massey Energy continues to mourn 

the loss of our miners. We are caring for the families who lost their 

loved ones. And we are determined to find out what happened. 

At the same time, we all need to recognize the importance of the 

coal industry to the economy and to the security of the United 

States. Coal is an abundant, affordable, and reliable source of energy that reduces our dependence on foreign oil. Pointing fingers 

and hurling accusations does not change that vital role that coal 

plays in America’s energy future. This is a time for industry leaders and the regulatory agencies to work together so that America’s 

coal miners can be safe and can provide the energy that our Nation 

relies on. 

I’ll be happy to answer your questions, whenever you’re ready. 

[The statement follows:] 

PREPARED STATEMENT OF DON L. BLANKENSHIP

Mr. Chairman, I appreciate the opportunity to appear before the subcommittee 

this afternoon to discuss the Upper Big Branch (Upper Big Branch) accident that 

took the lives of 29 valued Massey members. April 5 was one of the worst days of 

my life and in Massey Energy’s history. But the grief we have felt since that day 

pales in comparison to the pain and loss endured by the family members who lost 

their husbands, brothers, sons, and grandsons that day. I was with the families in 

the week following the tragedy, and I have gained a profound respect for their faith 

and their love and commitment to the miners lost in the accident. 

I have pledged that Massey Energy will do everything that is humanly possible 

to learn the cause of the explosion so that we can take every measure to prevent 

this type of accident from happening again. Massey is cooperating fully with State 

and Federal investigators and is conducting its own investigation into the accident 

as well so we can discover the truth. Furthermore, Massey Energy has joined with 

other stakeholders, including the United Mine Workers, in calling on MSHA to conduct its investigation of the Upper Big Branch mine explosion in the full sunlight 

of day, in front of the families of the miners, the mining community, and the American public. 

Today, I want to address Massey’s overall commitment to safety, discuss our 

interactions with MSHA regarding both inspections and appeals, and discuss ways 

that we can work together with MSHA to make mine safety and accident investigations more transparent. 

From the day I became a member of Massey’s leadership team 20 years ago, I 

have made safety my number one priority. I felt that other safety programs were 

too reliant on slogans and signs. So I designated safety as S–1: Safety First. 

Massey has long been an innovator of safety enhancements and has introduced 

many safety practices that have later been adopted throughout the mining industry 

in the United States and around the world. Since the establishment of our S–1 safety program, the innovation has increased. The following is a chronology of just a 

few of these Massey innovations: —1993.—Massey mandates the use of reflective clothing; Massey mandates use of 

metatarsal work boots for mining operations. —1994.—Massey implements seat belt policy for all mining equipment. —1995.—Massey designs, develops, and implements ATRS flapper pads for roof 

bolters; Massey replaces ladders on large trucks with steps to reduce falls. —1996.—Massey requires the use of strobe lights on underground vehicles. 

—1999.—Massey installs lights on all belt line feeders; Massey adds submarine 

safety package on stockpile dozers and loaders. 

—2000.—Massey requires the use of reflective tape on all surface vehicles. 

—2002.—Massey adds submarine safety package on highwall excavators and 

shovels; Massey implements continuous miner radio remote safety precautions. 

—2003.—Massey installs safety cameras on surface haulage trucks. 

—2005.—Massey begins development of continuous miner proximity protection device. 

—2007.—Massey develops self-contained foam fire-fighting car. 

Our next round of continuous miners will be the first in the world to have proximity devices on them that will shut down equipment if a coal miner is too close 
41 

to them to be safe. And, we are near completion of a new hard hat design that we 

believe will be adopted by the entire coal industry. 

Today, Massey Energy’s safety program has more than 120 rules and equipment 

enhancements that exceed legal requirements. The result has been a 90 percent reduction in our lost time accident rate, which has been better—often dramatically 

better—than the industry average for 17 of the last 19 years. Our safety innovations 

have been adopted by our competitors and have been praised by MSHA. In fact, just 

last fall, MSHA honored Massey Energy with three Sentinels of Safety awards, the 

highest safety honor in the mining industry. No other mining company has ever 

matched that accomplishment. 

So let me state for the record—Massey does not place profits over safety. We 

never have, and we never will. 

No coal company can succeed over the long term without a total commitment to 

safety and a significant investment in necessary training, equipment and personnel. 

We strive to remain an industry leader in safety by developing new technologies and 

employing effective training programs to reduce accidents and improve safety for all 

of the hard-working men and women of Massey Energy. 

Next, I want to talk about the issue of citations and appeals. Massey’s approach 

to safety is simple. First and foremost, abatement is mandatory. If MSHA identifies 

a safety violation and issues a citation, abatement is also mandatory. That means 

that even if the company appeals the citation, the equipment at issue, or the area 

of the mine in question, does not operate until that cited hazard is fixed. The large 

majority of violations are corrected the same day, often immediately. For those that 

require more time to correct, a deadline is given by the inspector. The company has 

no choice in the matter, and must follow the direction of the inspector. This is process established by Congress in law. 

We do appeal many of the citations, not to avoid correcting a problem, but because 

we disagree with the inspector’s judgment or because we believe that a proposed 

penalty is unfair. The right to a fair hearing before a neutral factfinder is fundamental to our system, and Congress has guaranteed that coal mine operators, just 

like every other business and every individual share the right to due process of law. 

That means trial first, and punishment later, not the other way around. Since Congress made fundamental changes in the system in 2006, Massey’s rate of appeals 

have been consistent with industry average. Just as important, through adjudications and settlements, the final penalties imposed are nearly 40 percent less than 

what MSHA proposed—a sure sign that our appeals are not frivolous nor are they 

taken for purposes of delay. 

So as you can see, Massey Energy does not ‘‘game the system,’’ as some have insisted. Rather, we are exercising our rights to due process under the system that 

Congress has put in place. We do not benefit from a system in which appeals are 

backlogged for months or years and we urge Congress to appropriate the resources 

necessary to make the appeal process work fairly and expeditiously. 

At the Upper Big Branch mine, we worked together with MSHA to address citations and ensure that the mine remained safe. Between April and October 2009, 47 

D orders, which are the most serious violations, were recorded at Upper Big Branch. 

That presented a challenge that we would not tolerate and did not ignore. In response, Massey convened a Hazard Elimination Committee comprised of top managers and reduced these violations by 80 percent. In fact, MSHA held its quarterly 

close-out meeting a few days prior to the explosion, and determined that there were 

no major issues and that the mine was in ‘‘good condition.’’ Let me repeat that to 

make it clear. Just days before the April 5 explosion, MSHA certified that the Upper 

Big Branch mine had no outstanding major safety issues. It found the mine to be 

in ‘‘good condition.’’ 

At Upper Big Branch, we complied with MSHA safety orders even when we strenuously disagreed with them and believed them to be detrimental to the health and 

safety of the mine. In particular, we disagreed with MSHA’s ventilation plan for 

Upper Big Branch mine. Against the advice of our own experts, MSHA required several changes since September 2009 that made the ventilation plan significantly 

more complex. This change in ventilation significantly reduced the volume of fresh 

air to the face of the longwall mining operation during this period. Our engineers 

resisted making the changes, in one instance to the point of shutting down production for 2 days, before agreeing to MSHAs ventilation plan changes. We opposed the 

changes because our own engineers believed they made the mine less safe, not because they were more costly or because they interfered with production. 

We do not know whether the ventilation system played a role in the explosion, 

and we do not know whether the modifications to that system demanded by MSHA 

played a role in the explosion. 
42 

But our disagreement with MSHA over the ventilation plan highlights what we 

believe is a fundamental flaw in the way the investigation of this accident is to be 

investigated. It is simply this: We do not think that MSHA should be able to investigate itself behind closed doors. How likely is MSHA to point the finger at itself 

if the evidence gathered in confidential interviews suggests that its actions contributed to the explosion? How do we know we’ll see all the evidence, or if all alternatives are aggressively explored if MSHA can investigate in secrecy? 

Other safety agencies don’t work that way. After an aircraft accident, the independent National Transportation Safety Board conducts the investigation in public. 

They look at both the airline operator as well as the Federal regulator—in this case 

the Federal Aviation Administration. That is why we have called for an open, public, and transparent investigation into the Upper Big Branch mine accident. 

In conclusion, Mr. Chairman, Massey Energy continues to mourn the loss of our 

miners. We are caring for the families of those who lost their lives. And we are determined to find out what happened and make sure that it cannot happen again. 

I would be happy to answer any questions at this time. 
43 
44 

Senator HARKIN. Thank you very much, Mr. Blankenship. 

And we’ll turn to Mr. Roberts. Again, please proceed. If you could 

sum up in 5 to 7 minutes or so, I’d appreciate it. 
45 

STATEMENT OF CECIL E. ROBERTS, INTERNATIONAL PRESIDENT, 

UNITED MINE WORKERS OF AMERICA, FAIRFAX, VIRGINIA 

Mr. ROBERTS. Thank you very much, Mr. Chairman. 

First of all, let me express the gratitude of the coal miners and 

this Nation for the work that this subcommittee has done in the 

past and the support that you have provided MSHA and others to 

protect the Nation’s coal miners. We owe you a great deal of gratitude. 

And to my friend and coalminers’ friend, Senator Robert C. Byrd, 

I want to say thank you for more than 40 years of standing up for 

coalminers. But, I want to pay particular tribute to the fact that 

we just recently celebrated the 40th anniversary of the 1969 Coal 

Mine Health and Safety Act. And for those who believe that laws 

don’t work, I want to point out something, if I may. The 40 years 

before the passage of the 1969 Coal Mine Health and Safety Act, 

32,000 plus coalminers died in the Nation’s mines—32,000 plus. 

Since the passage of the Act, 40 years ago, 3,200 plus miners have 

died. So, there’s been a savings of 29,000 lives because Congress 

saw fit to act in 1969, and Congress saw fit to act again in 1977, 

and Congress acted again in 2006. 

So, we stand here today to thank Congress for standing up for 

the coal miners of this Nation to protect them when they go to 

work. There’s not a coal miner in this country that doesn’t have a 

right to go out that door with their dinner bucket, and kiss their 

wife goodbye, and their children goodbye, and say, ‘‘I’ll see you in 

about 9 or 10 hours.’’ That’s not unreasonable to expect. 

I would also like to say that we mourn the loss of those 29 coal 

miners at Upper Big Branch. They were Don Blankenship’s employees. They were my friends. I knew a number of these people. 

I was raised with their families, lived right among them. And as— 

four of these miners who died were from Cabin Creek, where I was 

raised. So, we’ve looked into their eyes also, we’ve seen the tears 

of these people’s eyes. 

But, there’s another 23 miners we should mention right here 

today. There’s been 23 other coal miners that have died in Massey 

mines in the past 10 years. At the time of the Upper Big Branch 

explosion, Massey Energy had the worst fatality rate in the industry. This is before the Upper Big Branch explosion. So, now, we 

have 52 miners that have been lost at Massey Energy in 10 years. 

This is unacceptable. I think that the fact that other Massey Energy mines have been inspected, since this explosion and before 

this explosion, in close proximity of that time, and been determined 

to be unsafe—and, quite frankly, one of the upper leaders of MSHA 

declared that this was pitiful, that these mines were in terrible 

condition. So, it’s not just what happened at Upper Big Branch. 

We’ve got 23 other miners who died before the Upper Big Branch 

explosion. We’ve got the 29 miners who died the day of the explosion. And as we gather here right now, the real question for all of 

us, whether we’re in Congress, whether we’re leading this company, whether we’re leading this union, How are we going to protect every single coal miner working at Massey Energy, and for 

that matter, across this Nation? 

When I testified previously at one of the other committees, I said 

that 95 percent of the CEOs and companies in this Nation try to 
46 

do the right thing. They put a lot of money into protecting their 

workers. They have inspections. And they have criteria for working 

in those mines. And I will tell you, as Don Blankenship is sitting 

beside me, these other CEOs would not have put up with this for 

5 minutes. Someone would have done something about this. 

You asked me and the subcommittee asked, appropriately, before, and it asked MSHA before and it asked MSHA the last time 

I was here, Why didn’t you shut these mines down? I think that’s 

a proper question. 

The other question I’d like to pose is, Why didn’t Don 

Blankenship shut this coal mine down? We don’t have to question 

his authority. He runs this place. He could have walked up there 

and said, ‘‘This mine is shut down. This mine’s not going to operate 

another minute until we correct these problems.’’ 

So, we can ask MSHA this. And MSHA’s got a lot of explaining 

to do with this with respect to this, also. 

PREPARED STATEMENT

But, the laws are written by Congress here. Those laws are supposed to be obeyed by this industry. Those laws are supposed to be 

enforced by MSHA. And then those people who do not protect the 

miners and follow those laws, they should be punished, up to and 

including jail. And I don’t think it should be just the section foreman working down at Upper Big Branch. There is pattern here 

that’s running completely through this mining industry with respect to Massey Energy. And I’m saying the same thing here today 

that I said previously, and I say it publicly: I believe that. 

Thank you for your time, Mr. Chairman. 

[The statement follows:] 

PREPARED STATEMENT OF CECIL E. ROBERTS

Thank you for giving us this opportunity to testify before this Appropriations subcommittee. As President of the United Mine Workers of America (UMWA), I represent the union that has been an unwavering advocate for miners’ health and safety for 120 years. 

This subcommittee plays an important role in ensuring miners’ health and safety: 

adequate funding of the different Government agencies that contribute to miners’ 

health and safety is essential to protecting our Nation’s miners. We certainly appreciate your leadership in asking whether the various agencies with such responsibilities have sufficient funding, and whether additional resources are needed to protect 

miners. 

We suggest there are three separate, but related issues to consider about Government support: manpower; materials and equipment; and research and development. 

For each of these, there are current needs that would benefit from additional support. We are pleased to have this chance to share our thoughts about what the Government can do to better help protect our Nation’s workers from unsafe and 

unhealthy work places. 

Before I speak to the main topic, however, I wish to take a moment to remember 

the 29 miners killed last month at Massey’s Upper Big Branch (Upper Big Branch) 

mine, as well as the miner who remains hospitalized. Our hearts and prayers go 

out to all their families. Even though that mine was nonunion, all miners mourn 

when one of our own is killed working in a mine; our entire community has been 

devastated by this horrific tragedy. 

We believe that investigations of the Upper Big Branch tragedy will show that 

safe mining practices were not followed at that operation and miners were being exposed to senseless dangers. We already know that MSHA issued 515 citations and 

orders at the Upper Big Branch mine in 2009, and another 124 so far in 2010; moreover, the paper MSHA issued to Upper Big Branch reflects serious health and safety 

violations: 39 percent of the 2009 citations were for ‘‘significant and substantial’’ 

(S&S) violations. These violations are usually quite serious—the kind of violations 
47 

that can contribute to mine fires, explosions and the deaths of coal miners. Even 

more troubling is the fact that for the Upper Big Branch mine, in calendar year 

2009 MSHA issued 48 withdrawal orders pursuant to section 104(d)(2) of the Mine 

Act for S&S violations the operator knew or should have known constituted a hazard; as well as a section 107(a) withdrawal order for an imminent danger. These 

numbers far exceed industry norms. We are disturbed that these conditions were 

allowed to develop and continue and believe that a consistent and aggressive enforcement scheme is necessary to protect the Nation’s miners. For in the end it’s 

miners who pay the price when operators do not adhere to what the law requires. 

Unless operators operate mines consistent with legal requirements, we will continue 

to witness miners dying. 

To address some of the present shortcomings we urge the Government to provide 

support in the form of additional staffing in the key agencies, as well as for the purchasing of up-to-date equipment to better support miners’ health and safety. 

MANPOWER

We believe there is a need for increased staffing at MSHA, within the Department 

of Labor Solicitor’s Office (SOL), at the Federal Mine Safety and Health Review 

Commission (FMSHRC), and at NIOSH for the Government to have a more effective 

mine health and safety program. 

Over the last few months, there has been an important and much-needed focus 

on the huge backlog of cases at the FMSHRC. We firmly believe that this backlog 

has served to undermine some of the changes Congress directed in the MINER Act 

of 2006. This pertains directly to the Appropriations process insofar as more 

FMSHRC judges are needed to reduce the backlog, which, in turn, is needed to restore the enhanced penalty structure Congress designed through the MINER Act. 

While we are pleased that $22 million of additional funding was included in the supplemental budget bill that the Appropriations Committee recently passed to address 

these needs, the backlog will persist for many years unless the increased budget levels continue to support staff increases at the FMSHRC, MSHA, and the DOL’s SOL. 

The FMSHRC backlog has arisen since passage of the MINER Act in 2006, and 

the related increase in Mine Act penalties: for 2006, MSHA assessed about $35 million in penalties, while for 2009 assessed penalties rose to about $141 million. With 

the increase in penalties, the number and rate of contested cases also jumped. For 

each of the 5 years immediately before the MINER Act (2000–2005), only 5–7 percent of coal mine civil penalties lead to cases being contested before the FMSHRC, 

whereas for the last 3 years (2007–2009), the rate increased to 18 percent, 30 percent and 31 percent, respectively. 

Why is this important? Because without a meaningful structure for imposing and 

collecting the penalties, the congressional goal of increasing fines for Mine Act violations has not been realized. In fact, the higher penalty structure is being subverted 

by (a) the huge rate of contests that operators now file, overwhelming the Government’s ability to deal with its caseload, and (b) MSHA’s practice of reducing assessments when operators contest them. 

When operators contest the citations and penalties, there is a delay to their finality. This delay prevents MSHA from imposing the enhanced penalties that apply for 

repeat violations, or from placing an operator with numerous violations on a ‘‘pattern of violations.’’ Thus, while the higher penalty structure was designed to motivate operators to not have repeat violations, operators have been able to avoid them 

by delaying a final order that would show the repeat violation. Likewise, MSHA’s 

powerful ‘‘pattern of violations’’ enforcement tool becomes frustrated when citations 

are caught up in the FMSHRC’s backlog. MSHA’s determination that a mine has 

a ‘‘pattern of violations’’ carries much more serious consequences, and a mine must 

have an inspection free of S&S violations in order to get off of the ‘‘pattern.’’ 

In short, having a significant delay in the resolution of alleged violations diminishes MSHA’s ability to use its full arsenal of its enforcement tools. Yet, many of 

the violations caught up in the contest process are quite serious—the kind of violations that contribute to mine fires, explosions, and the deaths of coal miners. 

Another problem follows when operators challenge MSHA citations and proposed 

penalty assessments, and they routinely see their penalties reduced. This occurs 

both at the MSHA ‘‘conference’’ as well as after a case is referred to litigation. Reductions often occur at conferences when the mine inspector who issued the citation 

does not attend the conference to explain the reason for the citations, leaving the 

conferencing officer with no first-hand knowledge of the conditions cited. The operators, on the other hand, regularly send their representatives to conferences to dispute the validity and gravity of the citations that were issued. As a result, conferencing officers frequently reduce or abate citations. We encourage MSHA to provide 
48 

a better means for the inspectors to be able to support their citations, preferably 

with the inspector participating, too. We think it would also be helpful if an attorney from the SOL would be assigned to work with conferencing officers to help them 

identify the litigation strengths and weaknesses before any adjustments would be 

made. This would require additional staffing at both MSHA and within the SOL. 

While the FMSHRC has had certain time-lines for processing its cases, those no 

longer bear any relationship to reality. However, getting timely resolution of these 

disputes is critical to miners’ health and safety. One possible help would be for the 

FMSHRC to adopt procedures like the OSHA Review Commission’s ‘‘Simplified Proceedings;’’ in our testimony before the House Committee on Education and Labor 

in February of this year, the Union supported having the FMSHRC determine 

whether using such procedures would be appropriate for mine safety cases. We are 

unaware of any progress the FMSHRC may have made in this regard since that 

February hearing. 

MSHA has indicated a more aggressive rulemaking agenda, which we support. 

However, such rulemaking efforts will likely require additional staffing, too. 

To be most effective, we also believe MSHA needs to expand its cadre of in-house 

specialists. MSHA employs experts in such critical issues as ventilation, electrical 

systems, roof control, and ground control. The specialists review mine plans operators submit for MSHA approval before operators can implement their mining plans. 

These experts are also needed to defend MSHA citations when operators challenge 

them, as well as to investigate accidents. It is essential that MSHA fully staff and 

train its specialists to ensure the Agency keeps pace with industry advancements. 

In addition, with recent and anticipated retirements of MSHA’s specialists, the 

Agency must attract and train additional specialists to maintain its in-house expertise. It takes time for MSHA specialists to be able to perform the full range of required tasks, so this is an area that requires on-going support. 

We further recommend that MSHA affirmatively and repeatedly educate workers 

and management alike about the miners’ right to work safely: the Mine Act includes 

strong worker protections, but we know all too well that miners, especially nonunion 

miners, do not exercise these rights. Some simply do not know or understand them, 

but many more are too intimidated to speak up. As information widely disclosed 

since the Upper Big Branch disaster has demonstrated, miners become accustomed 

to accepting the status quo: work or go home, just don’t rock the boat. In the coalfields, good paying jobs are treasured and workers are hesitant to voice safety complaints for fear of getting discovered. Under the current law, the operator performs 

mine safety training and annual re-training, but for miners’ rights training that we 

recommend be added, it is imperative that MSHA do the training. In particular, we 

suggest that MSHA educate miners—hourly and management—and no less often 

than yearly: about the miners’ rights to work safely; to withdraw when conditions 

are dangerous; and to phone the Government (even anonymously) about conditions, 

as well as about the criminal penalties that can attach if an operator interferes with 

the miners’ exercise of these safety rights. 

I am attaching a letter I submitted to the Senate HELP Committee earlier this 

month, in which I explain some of the many areas requiring additional Agency attention to improve miners’ health and safety. Some of the proposed changes will require legislative action while others can be accomplished through rulemaking or internal policy. Regardless of the procedure by which the various changes can be 

made, many will require additional MSHA personnel to effect the needed improvements. 

NIOSH

In connection with our recommendations, below, for additional support for research and development, we believe it will be necessary to fund additional personnel 

for NIOSH to continue the valuable work it offers to the mining industry. Because 

of the very small customer base for the mining industry, NIOSH performs critical 

research and development for the technological advancements that improve miners’ 

health and safety. 

While we are not presently aware of the particular personnel needs of NIOSH, 

we feel it is essential to miners’ health and safety that NIOSH be well-funded. 

EQUIPMENT

It is essential that MSHA have equipment to enforce the laws and regulations 

governing miners’ health and safety, as well as the best equipment available to respond to mine emergencies. It currently falls short on both fronts. 

Lake Lynn, is an MSHA facility near Pittsburgh that is used for testing mining 

equipment. However, it has been shut down for some time due to structural damage 
49 

of the roof that occurred while blast-testing seals to meet the criteria of the MINER 

Act. This facility is a great resource to miners for testing new technologies; it is also 

a great training facility for mine rescue team members. Without the Lake Lynn facility, the mining industry tests products at various mine sites. However, that is not 

satisfactory and we nearly lost a Jim Walters operation in Alabama to a mine fire 

while doing a test for a mine sealant. It could have resulted in loss of lives and a 

mine shutdown. Therefore, we urge an allocation of funds to reopen the Lake Lynn 

facility. 

The UMWA training center in Pennsylvania is another valuable facility for miners that is deserving of the Government’s financial support. This center offers invaluable training for new miners, underground electrical training, and mine rescue 

teams. 

Another valuable tool for enhanced training lies with the virtual reality training 

system. We urge an allocation of funding for the purchase of this state-of-the-art 

technology that allows miners to experience and respond to real hazards in a safe 

and controlled setting. For example, it can show miners how best to escape a mine 

disaster, as well as how to respond to underground rib and roof stability problems. 

This technology would be especially helpful for mine rescue teams, but all miners 

would benefit from its use. 

MSHA would benefit from additional funding for improved communications and 

training within the Agency. For inspector training, technical support, and improved 

emergency response, MSHA must be able to communicate with its own staff quickly 

and efficiently. We understand additional funding is needed to bring the Agency’s 

equipment up to today’s standards. 

We also support the creation and funding of another mine emergency operations 

center, to be located in the Midwest. At the present, such centers are located in the 

East (near Pittsburgh, Pennsylvania and Beckley, West Virginia) and the West 

(Provo, Utah). However, if there were a mining disaster in the Midwest, where mining activities have been increasing, MSHA does not have equipment in reasonable 

proximity to respond quickly. 

Other equipment that would help MSHA better enforce existing laws and regulations as well as to best respond to mine emergencies include: 

—Coal Dust Explosibility Meters.—This is a portable device that quickly measures 

coal and rock dust mixtures to determine whether they are in the explosive 

range. As it now stands, samples an inspector collects are sent away and take 

about 2 weeks to process. For example, it was only after the Upper Big Branch 

mine explosion that we learned the mine had an impermissible coal and rock 

dust mixture shortly before the explosion. Having immediate information about 

the combustible content in a mine could prevent future explosions. 

—Mine Rescue Robots.—MSHA has at least one such robot, but more would be 

helpful for emergency responsiveness. These robots operate remotely and can go 

where it may be unsafe for rescuers to travel. The robot can provide real time 

data as well as video to help plan a rescue effort. We understand that the cost 

for each one is approximately $265,000. 

RESEARCH AND DEVELOPMENT

Under both the Mine Act of 1977 and the MINER Act of 2006, Congress anticipated that NIOSH would provide critical research and development of technology 

and materials for the mining industry. It must be fully funded to continually improve and enhance miners’ health and safety. 

Along with MSHA, industry, and union representatives, NIOSH developed proximity detection technology that is expected to dramatically improve safety around 

the huge mining equipment that is used both underground and on the surface. Before the Upper Big Branch disaster, MSHA determined that about 20 percent of the 

fatal accidents in the last 5 years could have been prevented through use of proximity detection equipment. 

NIOSH also developed a collapsible drill steel enclosure that reduces roof bolting 

noise levels and also captures float coal dust to reduce its adverse health hazards, 

as well as a mobile manipulator that can lift and maneuver loads of up to 600 

pounds. 

We need NIOSH to help develop the next generation of self-contained self-rescuers, the units miners carry for whenever a mine emergency disturbs the underground atmosphere turning the air toxic. Today, miners are unable to speak with 

each other while wearing a SCSR, yet they cannot live if they take even a breath 

or two of the postdisaster poisonous air. There is also a pressing need for research 

directed at the development of tamper-proof machine-mounted methane monitors 

(also called ‘‘sniffers’’) that will automatically cut the power to a machine if the 
50 

sniffer is blocked, bridged or in any other way preventing proper methane readings; 

these are needed to warn miners of excessive concentrations of methane. 

In short, NIOSH’s research and development efforts are essential to advancing 

miners’ health and safety. 

CONCLUSION

We rely on the Government to enforce the mine health and safety laws and regulations to protect miners’ health and safety. The Government needs to have adequate resources to do so efficiently and effectively. It also must have up-to-date 

equipment that is physically proximate to be accessible in the event of mine emergencies. Additional resources are needed to accomplish these goals, and we appreciate your help realizing them. Thank you for allowing us to address this subcommittee, and for your continued commitment to workers’ health and safety. 

Senator HARKIN. Thank you Mr. Roberts. 

I will yield, for opening questions, to Senator Byrd. 

Senator BYRD. Mr. Blankenship, do I have your attention? 

Mr. BLANKENSHIP. Yes, sir. 

Senator BYRD. Do I? 

Mr. BLANKENSHIP. Yes, sir. 

Senator BYRD. We have all heard, or we’ve all read, about the 

number of times that Massey mines have been cited—C-I-T-E-D— 

cited for safety violations in the past months plural—M-O-N-T-HS. And we all know of the recent carnage at Massey’s Upper Big 

Branch mine. Twenty-nine men are now dead dead dead simply because they went to work that morning. 

I’m also concerned about the Massey record—R-E-C-O-R-D. Apparently, these safety violations are nothing new—nothing new. According to MHSA figures, during a 10 year period–1995 to 2006— 

Massey mines had a total of 1998 injuries and 24 deaths—24 

deaths. Massey Mines were cited for 31,000—I’m going to repeat 

that. Massey mines were cited for 31,000 violations. This means 

that, on the average during that 10 year period, a miner was seriously injured every other day. There were 10 safety violations 

every day—every single day at Massey mines. Let me add an exclamation point there. And I’ll say again, there were 10 safety violations every day at Massey mines. And this is clear—I mean, as 

clear as the noonday sun in its cloudless sky—every day at Massey 

mines. And this is a clear record. A blatant—B-L-A-T-A-N-T—blatant disregard for the welfare and the safety of Massey miners. 

Shame. 

Would you care to comment? 

Mr. BLANKENSHIP. Yes, Senator. First of all, we take violations 

extremely seriously. The criteria, after the MINER Act, greatly 

changed on violations, as I think everyone understands. As I said, 

in my opening statement and in my submitted testimony, I’ve reduced the accident at rates Massey by 90 percent during my tenure 

as chairman. 

At Upper Big Branch, we didn’t sit idly by. And once we recognized how many violations we were having, we formed a hazard 

elimination committee, and reduced citations at Upper Big Branch 

by nearly 80 percent. 

We’ve worked very hard with MSHA, and very hard in our own 

company, to find ways to make miners safer. We have more than 

120 rules and policies at Massey that exceed the law. We’ve been 

the, if you will, most significant innovator of new technology, including everything as simple as reflective clothing to as com-
51 

plicated as the fact that this year we will buy the first —the miners with proximity devices on them. We’re developing new helmets 

to make it safer. We’ve led the industry in safety innovation, and 

we have made every attempt to deal with the violations—and continue to do so, and will continue to do so because we believe in 

eliminating hazards for our coal miners. 

Senator BYRD. Mr. Roberts, would you like to respond? 

Mr. ROBERTS. Yeah, let me thank you, Senator, for the opportunity. 

The effort to reduce the number of violations and make the 

Upper Big Branch mine safer, if you look at the first quarter of 

2010, and take the number of violations that were issued in the 

first quarter, after Mr. Blankenship says he assigned this specialty 

team, they were on a pace—if you take the numbers that they were 

issued, the violations they were issued in the first quarter, and 

project them out for a year, 500 violations. Now, I would suggest 

that that’s not a record that anyone should come in here and say 

they’re proud of. 

The other thing is, they were also shut down, I believe, seven 

times for serious violations in that first quarter. That projects out 

being shut down by MSHA, the agency charged with enforcing the 

laws that Congress passed, 28 times. 

And then, I would just like to add a human element to this, if 

I might. There is evidence there that miners were scared to death. 

There was a young man named Josh Knapper—I know his family— 

25 years old. He wrote a letter to his mother, his fiance, and his 

baby, and said, ‘‘If I die, I want you to know I love you.’’ Now, 

that’s the kind of letter people used to write going to Vietnam. And 

that’s the kind of letter people write today, going off to war in the 

Mid East, in Afghanistan and Iraq. That is not the kind of letter 

you’re supposed to write going to work with your dinner bucket. 

Senator BYRD. Mr. Blankenship, miners have rights under the 

law to walk away from an unsafe work environment. But, there are 

some people who say that the miners are afraid of losing their jobs, 

so don’t rock the boat. How often do Massey miners request transfers because of safety concerns? Let me ask that question again. 

How often do Massey miners request transfer—because of safety 

concerns? 

Mr. BLANKENSHIP. I don’t know that we keep a statistic on requested transfers. I can tell you that we did a survey, I believe in 

February of this year, where we anonymously asked our people if 

they felt safe on the job, and whether they thought Massey’s S1, 

which is our name for our safety program, made them safer than 

at competitor mines. And, anonymously, 93 percent confirmed that 

they felt not just as safe, but safer. 

I can tell you that we take very quick action on individuals that 

violate our safety rules as we become aware of them. We discharge 

more people for failing drug tests and safety than we do for anything else. So, we’re constantly trying to enforce upon people how 

important we consider violations, how important we consider safety. We’ve invested tens of millions of dollars beyond the law. We 

have our own safety manual that exceeds MSHA’s standards on 

safety requirements. We’re the leader in the industry. 
52 

Our people should not feel afraid. They have an 1–800 line that 

they can call anonymously. We encourage them, through posters 

and communication, that, if they have an issue, let us know. You’ll 

always have, out of 7,000 members, people that perhaps don’t come 

forward, and should. But, we think we have as good a safety program, in that regard, as anyone in the industry. 

Senator BYRD. Mr. Blankenship, how many Upper Big Branch 

miners requested to be transferred because of safety concerns, prior 

to the April 5 explosion? 

Mr. BLANKENSHIP. Again, I don’t know of any statistic that we 

have on how many people requested transfer out of Upper Big 

Branch. And I don’t particularly know that anyone transferred, or 

asked for a transfer, for safety reasons. They may have. Most of 

our requested transfers relate to being closer to home. But, I don’t 

know of anyone, personally, that asked for a transfer for safety reasons. But, there may well have been some. 

Senator BYRD. How would you handle those requests? 

Mr. BLANKENSHIP. Well, the first thing I would be interested in, 

if I had a request that came to my attention, that someone wanted 

a transfer for safety reasons, would be trying to figure out what 

safety concern they had that would encourage them or cause them 

to make such a request. And then, of course, to try to correct that, 

as well as accommodating anyone that feels unsafe in our coal 

mines. 

I would say, to the group, that we had 29 miners perish in this 

accident that had a combined 400 and some years of experience, 

and they would not put themselves, knowingly, at risk, in my opinion. Two of them were engineers. Several of them had worked at 

this mine for 10 or 14 years, and were very experienced and very 

well-qualified longwall miners. And I don’t believe that they 

would’ve put themselves at risk, knowingly. 

Senator BYRD. Mr. Roberts, would you care to comment? 

Mr. ROBERTS. The one thing I can say is, I’ve never met a 

Massey miner, or heard of a Massey miner, that withdrew themselves for cause of safety. I find that, in and of itself, somewhat 

ironic. 

The one thing that we encourage Congress to consider is to make 

it a criminal violation for any supervisor or any management person who interferes with a person’s individual right to withdraw 

themself from what position that they feel is unsafe. That’s something that we desperately need, because it’s our opinion that miners are very much concerned. We know that people there, at this 

mine, were worried about being killed, being injured. And I think 

that the record will reflect that when this investigation is completed. 

Senator BYRD. In Mr. Main’s testimony, he—the Assistant Secretary cites—C-I-T-E-S—recent anonymous complaints that 

prompted MSHA inspections at three Massey mines in West Virginia. Inspectors found illegal practices that required withdrawal 

orders to be issued because of inadequate air movement, with the 

potential for explosions; blocked escape ways; insufficient mine examinations by the operator; and roof fall hazards. Now, what happened to the Massey officials who allowed these dangerous and illegal practices to exist? 
53 

Mr. BLANKENSHIP. You know, I think Mr. Main was referring to 

some events at one of our mines where people had called in, about 

1 month before the April 5 tragedy. And, in answer to what happened to them, all nine individuals, who were felt to be aware of 

and participating in the improver activity, were discharged, and as 

was the one individual that was cited by MSHA, post the April 5 

accident. 

I can say only that when you have 7,000 people, as is the case 

with a lot of companies, you can’t keep track of all of them. But, 

we make our very best effort, when we hire people, to make sure 

we’re hiring people who will produce safely. It includes drug testing; it includes criminal checks; it includes everything as simple as 

being able to read, to being nonsmokers. So, a big part of our safety 

program is trying to make sure we’ve got well-qualified, well-meaning people who can behave safely in a coal mine. But, sometimes 

that doesn’t work out. 

But, in answer to your question, all nine of those individuals 

were discharged immediately. 

Senator BYRD. Why were MSHA inspections necessary to correct 

these? 

Mr. BLANKENSHIP. Again, as is the case with Mr. Main, I and 

others can’t be at the mine every day. So, there are violations. 

I do think that that incident, which occurred about a month before the April 5 tragedy, indicates that some people do call in. 

This—as I understand it from Mr. Main, and did not know for sure 

that that was the case, these people did call in that they felt unsafe, or that improper practices were being conducted, which demonstrates that they will call the 1–800 hotline, or be whistleblowers. 

And, as I said, we took immediate and decisive action. 

Senator BYRD. Mr. Roberts, do you want to comment? 

Mr. ROBERTS. Yes. I think there’s a distinction that—to be drawn 

here. The question that you asked Mr. Blankenship previously was 

how many miners had withdrawn themself. That means, you say 

to your foreman, ‘‘I think I’m in a dangerous position here, and I 

want a different place to work.’’ That’s individual withdrawal 

rights. 

I said I had never heard of a Massey miner exercising that right. 

Mr. Blankenship, said he didn’t know. That is different than someone picking up a telephone anonymously—obviously, they’re calling 

because their name will not be revealed and reporting a serious situation at their particular mine, at the Massey Energy Company. 

I think there were three different mines that MSHA actually 

went into; one or two of those was before Upper Big Branch. And 

I think they investigated some mines after Upper Big Branch, and 

found serious violations, also. 

So, there’s a distinction here. It’s not the same thing. When 

someone calls anonymously, no one knows who they are. When 

someone withdraws themselves, everybody knows who they are. 

And the question you asked Mr. Blankenship, and asked me, 

was, How often is this exercised? I know of no miner ever exercising that right at Massey, and he has not—he does not have the 

information, or he doesn’t know of any miner that ever withdrew 

themself at Massey. 
54 

Senator HARKIN. Mr. Blankenship, you say that Massey does not 

place profits over safety, never have, never will. That’s what you 

said in your statement. But, in a memo from you, dated October 

19, 2005, you told your company’s deep mine superintendents that 

running coal is the top priority in the mines. Here’s the quote, ‘‘If 

any of you have been asked by your group presidents, your supervisors, engineers, or anyone else to do anything other than run 

coal—i.e., build overcasts, do construction jobs, or whatever—you 

need to ignore them and run coal. This memo is necessary only because we seem not to understand that the coal pays the bills,’’ end 

quote. Doesn’t sound like putting safety first to me. 

Mr. BLANKENSHIP. Yeah. I think that that’s true if you read it 

in the sense that—but, people at Massey know that S1 is—safety 

is job one. That memo was the product of a situation where construction work that wasn’t needed for 5 years, to turn off other sections and so forth, was being done at a time that it didn’t need to 

be done. 

And, in fact, I encourage our coal production people to produce 

coal, because, so long as they’re working in the job that they routinely do, they’re more likely to be able to do it safely. When you 

put people, who work in the face of coal mines and mining coal, 

into the business of shooting and taking down overcasts and doing 

other work that’s not normal to them, they’re more likely to get injured than if they do their normal work. 

That memo was quickly and poorly drafted and sent out. A few 

days later, we sent out a corrected memo to make sure no one misunderstood it. And, as you might imagine, in my 20 years at 

Massey, I’ve probably written and received hundreds of thousands 

of memos. But, I’m confident that our safety culture, S1, and our 

belief in safety, and so forth, far overshadows any single letter that 

was written at a time when were having people do construction 

work that was not necessary for a long period of time, and were 

idling production to do so. 

Senator HARKIN. After the deaths of two miners in 2006 at the 

Massey controlled Aracoma mine in West Virginia, Aracoma agreed 

to plead guilty to a series of criminal violations that hampered 

miners trying to evacuate the mine after a fire had started—after 

the deaths of those two miners. In the plea agreement, Aracoma officials agreed with prosecutors that the company, quote, ‘‘Recklessly failed to replace the stoppings or to provide additional ventilation controls,’’ end quote, to protect the primary escape tunnel. 

Again, it just doesn’t sound to me like putting safety first. 

Mr. BLANKENSHIP. Well, again, we do everything we can to get 

all 7,000 of our people to put safety first. And, in that same plea 

agreement, everyone agreed—in fact, the plea agreement makes 

clear—that Massey Energy, nor any of Massey’s executives or anyone, had any knowledge of the stopping being left out. I had done 

everything that I knew I could do, in advance of that fire, by pointing out that we—you know, we needed to make sure that everything was safe. 

Obviously, a stopping appears to—at least appears—I think it’s 

fairly certainly it was left out, and it did violate the escape way. 

But, certainly, none of that plea agreement says that Massey ex-
55 

ecutives or myself knew about it; in fact, it says the opposite; that 

we clearly did not know about it. 

Senator HARKIN. Mr. Blankenship, you mentioned the MSHA 

awards, the three Sentinels of Safety awards, that MSHA gave you 

last fall, if I’m not mistaken. But, I understand that none of these 

awards were for an underground coal mine, and your three recognized sites represent less than 2 percent of Massey Energy operations. So, I think it is a stretch to say that MSHA praised your 

safety record, when Upper Big Branch mine had, what, 48 withdrawal orders? 

Mr. BLANKENSHIP. Yes. At about that same time we were having 

those citations, slash, violations, as far as it representing only 2 or 

3 percent of our workforce, I don’t know that any single mine represents more than 3 or 31⁄2 percent of our workforce. So, those are 

individual mines, Sentinels of Safety Awards, and it would never 

represent a large portion of the workforce. 

Senator HARKIN. But, they were for your aboveground mines. 

Mr. BLANKENSHIP. Yes. They were—I think they were primarily 

for preparation plants and maybe also a surface mine. 

Senator HARKIN. Well, I’m going to ask both of you this question. 

Now, we know that there are mines that have great safety records, 

very rarely have an accident, and, when they do have an accident, 

it’s usually because of an individual who has, maybe, not followed 

the correct order or direction. 

But, why can’t we take those mines, that have these excellent 

safety records and a culture of safety, and why doesn’t Massey incorporate those into your mines? I mean, you would think that— 

if I was in business, in a hazardous business like coal mining, and 

I had other mines, maybe that weren’t even—were not in my operation, were not in my company, but they had excellent safety 

records, and didn’t have any problems, you’d think I’d want to 

adopt that. 

Mr. BLANKENSHIP. Well—— 

Senator HARKIN. And do you ever do that? Do you ever look what 

other mines are doing and say, ‘‘They have a great safety record, 

maybe that’s what we ought to be doing?’’ 

Mr. BLANKENSHIP. We’re right on target with that. We volunteered, to the National Mining Association (NMA), that we would 

make our S1 Safety is Job One package, which has 120 rules that 

exceed MSHA’s rules, available on the Internet to everyone in the 

mining industry. And we did that. 

We also use good performing mines as templates to look at bad 

performing mines. Upper Big Branch had, like, a 5.8 NFDL rate in 

2009. And this focus we put on it, as a result of our measurement 

and understanding of processes at the upper Massey level, brought 

that accident rate to zero in the first quarter of 2010, before this 

tragedy. So, we do use best practices. In fact, our S1 program is 

the accumulation of best practices that we’ve learned at well performing mines. 

Senator HARKIN. Mr. Blankenship, I’ve been around long enough 

to know that you can have all kinds of fine things on paper, but 

unless they’re actually executed on a daily basis, they don’t mean 

much. You can have all kinds of fancy things on paper, but you 

said something earlier, to a question that Senator Byrd asked, and 
56 

I wrote this down. ‘‘We can’t be at the mine daily.’’ Neither MSHA 

or you can’t be at the mine daily. 

I understand that. MSHA can’t have an inspector in every shaft, 

in every mine, every minute of the day. You can’t be there, either. 

That’s why you have to have safety things set up that are self-perpetuating. You also need to have a system whereby, if a miner sees 

a violation, that miner, with all the protections that they have, can 

blow the whistle. 

Mr. BLANKENSHIP. And I couldn’t agree more. In fact—— 

Senator HARKIN. Well—do you have a setup for a miner who sees 

a violation, that has complete anonymity, that they can report that 

violation without any fear of retribution whatsoever? 

Mr. BLANKENSHIP. Yes, we have an 1–800 number that they can 

call in anonymously. We tell our people—— 

Senator HARKIN. And where do they go to a phone to call that 

1–800 number? 

Mr. BLANKENSHIP [continuing]. They can call it from anywhere. 

I mean, they can call it from their home, they can call it—— 

Senator HARKIN. Yeah. And then you can trace that and find out 

where that call came from. 

Mr. BLANKENSHIP. Well, I mean, I don’t know that we can trace 

it. I don’t know what we’ve got on there. But, the main thing is 

that our people are told, constantly, that they should never work 

unsafe. They sign a piece of paper, when they come to work for us, 

that they will neither work unsafe, nor participate in safety violations. I think we’re doing pretty well, in that regard, by evidence 

of reducing from 8.0 to 0.79 NFDL rates. 

We have tragedy on our hands, but we don’t know why it happened. I believe there are things that the industry and MSHA need 

to do to greatly reduce the chance that would happen again. But, 

the idea that Massey or Massey’s management or the great majority of Massey—you know, there’s always somebody out there that 

does not care about safety is—untrue. 

Senator HARKIN. Mr. Roberts? 

Mr. ROBERTS. I’d just like to point out a couple of things, if I 

might. 

One is that, not only have we experienced these 52 fatalities, this 

horrendous situation at Upper Big Branch, this is the second disaster in 4 years at a Massey operation. And, quite frankly, I don’t 

think too many companies are out there looking to copy what’s 

going on at Massey and implementing that at their operations. 

The awards that Don talked about in his testimony, the Sentinel 

of Safety, it’s true that MSHA awards that, but I think that’s 

awarded jointly with the NMA, if I’m not mistaken. 

I want to speak to something that we’ve become aware of. And 

we raised this with Mr. Blankenship at his shareholders meeting, 

earlier this week. We have witnesses and people who work at 

Massey who tell us that, when you get when you get injured at 

Massey, or when you get to the emergency room, someone from 

human resources meets you there. 

And we’ve got one young man who had his finger cut off, and the 

person from human resources said to this young man, who, incidentally, worked at Upper Big Branch, ‘‘You don’t have to take time 
57 

off here. You can come back to work, and we’ll give you light duty. 

And that way we don’t report this.’’ 

We also have evidence that they have at least one individual, 

that we know of, that has three broken bones in his back, and he’s 

working at Massey. So, that’s not a lost time accident at Massey. 

So, I think their statistics are borderline fraudulent here, when 

you’re paying people who are hurt, and would be off any other coal 

mine in this Nation, and taking time off from work and getting 

workers comp or S&A benefits, and you’re paying those people to 

come to work and say, ‘‘Look what I’ve done.’’ 

And I think there’s another important thing here, I—that is troublesome to us, is—in Mr. Blankenship’s package that he has with 

the company, he gets a bonus for reducing lost time accidents. So, 

we take company money and we pay someone who’s injured to 

come to work, and then Don gets a bonus because he reduced lost 

time accidents, then he gets an award from MSHA for this. 

Mr. BLANKENSHIP. Can I address that a little bit? 

Senator HARKIN. Mr. Blankenship, you should have a chance to 

respond to that. 

Mr. BLANKENSHIP. Yeah. Contrary to what Cecil says, people in 

the industry copy us all the time. In fact, I’m interested, sometimes, in seeing, on television, how widely spread the straps are. 

The reflect— or, the flappers on roof boulders that protect the roof 

boulder more than he would otherwise be protected, are Massey inventions that are everywhere. Red zones around highwall miners 

are everywhere. We’ve led the charge on proximity devices that we 

think will be everywhere. 

Many of the 120 rules that we’ve put in place—one of the most 

important being submarine kits that allow a dozer that falls down 

in a coal pile and gets covered up to be able to have lights and communication and breathing apparatuses—is a Massey invention that 

we know has saved lives, that’s been adopted, not only by many 

other coal companies, but, in fact, by the Government itself. 

So, we’ve done many, many things that have been followed-up on 

by others. It’s very common for companies to have light duty work. 

A guy that’s going to get 60 percent of his pay to stay home, who 

has the tip of his finger cutoff, may choose that he wants to work 

as a dispatcher or something that he can productively do, rather 

than stay home. We don’t require that. We can’t require that. The 

law prohibits requiring that. But, in fact, we make that opportunity 

available to people who would want to choose to do that. 

I suspect and believe that many companies do that. I don’t think 

it’s a bad practice, so long as the guy can fully perform the job 

that’s available for him. 

Senator HARKIN. Is your mine organized? Is it represented by a 

labor union? 

Mr. BLANKENSHIP. We have very few union represented employees. We have probably 100, 120. This particular mine, at Upper Big 

Branch, was a former Peabody Union coal mine, that twice voted 

not to be represented by the mine workers. Many of the people 

there were still—you know, were former UMWA workers, but they 

weren’t— had not chosen to be members of the union at this time. 

Senator HARKIN. I guess the one thing that just keeps nagging 

at me—I hear what you say about safety and all the things you’re 
58 

telling me, and I don’t have an intimate knowledge of that, obviously; but then, when I wrote down here, 52 miners died at Massey 

mines, 23 before the explosion, 29 in the explosion, 52 over 10 

years, highest in the industry—I’m trying to square these two 

things. 

Mr. BLANKENSHIP. Well, the only thing that I can say is that, 

once you add the 29 in, it’s a bad record. I feel terrible about it. 

I don’t know, yet, what happened. When you look at the 23 we had, 

look at the difficult conditions—underground conditions, and so 

forth—that we work in central Appalachia, we’re about average, if 

you look at the number of fatals. We’re a big producer, so absolute 

numbers, when you’re producing 40 million tons a year, tend to get 

big, even with your best efforts. 

But, any fatality is unacceptable to us. There’s not been a single 

fatality that we’ve not tried to make an improvement. We’ve had 

highwalls and surface mines fall on people; we’ve set up red zones 

with cones to prevent it. We’ve had people that were killed by a— 

you know, a piece of metal flap flipping up as they were running 

a car, and it would stab them; we’ve put doors on there to keep 

that from happening. We’ve had people that were—we’ve had several, as the industry has, fatalities where a miner operator is positioned in the—on the right side of the miner, and we’ve put up, 

without being required by law, $2 million a year worth of larger 

roof bolt plates, called ‘‘pizza pans,’’ and we’re the only people that 

I know that do that routinely to protect that miner. 

Cecil frequently calls that ‘‘writing law or a policy in a coal miner’s blood.’’ We don’t believe in that. But, we do believe in learning 

from accidents, and trying to do better. And that’s what we intend 

to do at Upper Big Branch. And, as this investigation proceeds, 

that’s my biggest objective. 

Senator HARKIN. I’ll have one last question, after I yield to Senator Byrd, and it’s going to involve your comment about this open 

investigation by MSHA. So, I will return to that after I recognize 

Senator Byrd. 

Mr. BLANKENSHIP. Thank you. 

Senator BYRD. Mr. Blankenship, why, why, why so many fatalities at Massey mines? 

Mr. BLANKENSHIP. As I was alluding to earlier, we are probably 

about average, 23 at Massey, with, you know—I don’t know the 

exact number, but call it 400 million tons during that period of 

time, would be the equivalent of, say, 50 across the industry, which 

is probably not far off the average. But, the issue, of course, is that 

mining in central Appalachia, mining in deep mines, mining in 

areas that we mine in, it’s a real challenge. We meet that challenge 

as best as we’re humanly capable of doing, and will continue to do 

so. We have 120 rules in place that exceed the law. We have invented, for another example, the ability to retrieve equipment from 

out from under a supportive roof, like a remote control miner, by 

being able to reactivate the tram remotely, which is another 

Massey invention. 

I could carry on here for hours about Massey inventions, trying 

to deal with the hazards of coal mining, believing that we have to 

engineer the risks out. And we have to work together with the Gov-
59 

ernment and the company to find more opportunities to engineer 

the risks out of mining. 

Senator BYRD. Mr. Blankenship, Massey is not average. Massey 

is not average. 

Cecil, would you like to comment? 

Mr. ROBERTS. I’ve heard Don use this ‘‘. . . 23 fatalities in 10 

years . . .’’ this is before Upper Big Branch— as ‘‘about the industry average.’’ And, for the life of me, I can’t come up with another 

coal company that’s had 23 miners in 10 years die. And then he 

takes the amount of production and says that’s how he gets to that. 

I think we have to look at the number of people who have been 

killed at a particular company, as opposed to saying, ‘‘Well, I mine 

x amount of tons, and I figured out some way to make that the average.’’ That’s not the average. That’s unusual, it’s unacceptable, 

and I wish Don would come to that conclusion, that we have to do 

better than this, and he has to do better than this. 

And then to have this terrible explosion take place at Upper Big 

Branch, on top of this—this is the worst fatality rate in the industry, either way you look at it. Either before the explosion or after 

the explosion, it’s the worst. And I’ve just—have trouble with his 

calculations, here, that somehow this is the average. This isn’t the 

average. This is deplorable, is what it is. It’s not average, and it’s 

not acceptable. 

Senator BYRD. Mr. Blankenship, I helped to write the laws, in 

1969, 1977, and 2006, so I’ve been around awhile. Let me say it 

again. I helped to write the laws, in 1969, 1977, and 2006, to improve safety in our coal mines. The responsibility to comply with 

those laws is yours, Mr. Blankenship. 

How do you reconcile your assertion that safety is number one 

at Massey with the fact that your mine has had 48 withdrawal orders, too many violations, and 52 deaths? 

Mr. BLANKENSHIP. I can tell you it’s not an assertion. We work 

very hard to make safety job one at Massey. The violations that occurred in, essentially, the first half of 2009, when they came to the 

management’s attention, we put two safety specialists at the mine. 

We formed a five person hazard elimination group, which also has 

two MSHA people, former MSHA people involved in it. We’ve met 

with MSHA to go over how we might proceed, in terms of all 

Massey hazards across the company. We worked very hard to deal 

with the violations at that coal mine, as we do at the other coal 

mines. 

We’ve spent tens of millions of dollars beyond the laws that you 

passed. I’m very appreciative of the laws that you have passed. I 

know these coal miners. I still interact with them. I’m probably the 

only major company CEO that still lives in the heart of them. I live 

at Sprigg, in Mingo County, West Virginia. I play basketball with 

them. I know their families. I looked them in the eye, on the night 

that we had to give them the bad news. I don’t want to do it again. 

There’s nothing that I can be accused of or nothing you can do to 

me that will make me want more than the feeling of having to inform family members of such a tragedy, to want to avoid it again. 

And I can assure you, despite what you read in the media many 

times, that Massey is very serious about dealing with safety violations and improving safety. 
60 

Senator BYRD. Senator Harkin, thank you. 

Senator HARKIN. Thank you, Senator Byrd. 

Senator BYRD. You have something else? 

Senator HARKIN. Yes, I just have one more. 

You talk about the mine—that MSHA said the mine was in, 

quote, ‘‘good condition.’’ But, Mr. Main said that there is no such 

designation. 

Mr. BLANKENSHIP. Yeah, I was, oh, you’re looking—I was stricken by the word ‘‘certified.’’ I would agree with Mr. Main, that they 

probably don’t have a quote, ‘‘certification’’ of a good mine. But, it 

is reported to me, and I think people will testify that, on the closeout inspection, that MSHA thought that the mine had this—inspectors onsite and the management onsite agreed that the mine had 

been ‘‘fixed,’’ if you will, that the problems had been addressed, and 

they were appreciative of all the focus and effort that we had put 

into it. 

I had met with Mr. Main, I believe, in February 2010, just a couple of months before the accident, and asked the question of, 

‘‘What—is there anything we need to focus on, any big problem 

that you want us to deal with?’’ I think that we all thought that 

we had moved this mine forward. I don’t know, yet, because I don’t 

know what happened, whether the violations, and the nature of 

violations, and so forth, contributed. So, we’re anxious to find out. 

Senator HARKIN. Now, one more time, Mr. Main also said that 

MSHA does not provide for plans for ventilation. They don’t do 

that. Yet, you seemed to indicate, in your testimony, that MSHA 

provided some kind of plans for changing the ventilation system. 

So, then I want to get this straight. Did they provide you—did 

MSHA provide you with a planned ventilation system? 

Mr. BLANKENSHIP. I think that most people in the industry 

would agree that MSHA only approves the plan they want. An easy 

way of example for you, one of the things that Congress has allowed is scrubbers on continuous miners, which we all agree and 

as far as I know, no one disagrees with—the filters in—on continuous miners are an important part of holding down breathable 

dust. Yet, MSHA will not approve the use of 63 of our continuous 

miner scrubbers. So, therefore, we’re not running them. That’s not 

our plan, that’s not our wish. We fully disagree with it. We’ve 

talked to them about it for a long time. We went public with the 

fact that they won’t let us run the scrubbers. I offer that as evidence that they won’t approve our ventilation plans. They force us 

to ventilate backward by not approving the plans. We prefer to 

ventilate on blowing air systems, they prefer that we ventilate on 

the exhausting air systems. The mines are not ventilated, nor are 

the scrubbers run, because MSHA won’t allow it. 

Senator HARKIN. Now you’re in an area I don’t know anything 

about, obviously. 

Mr. BLANKENSHIP. Yes, I understand. 

Senator HARKIN. I don’t understand all—— 

Mr. BLANKENSHIP. And I apologize for that, but I—— 

Senator HARKIN. That’s okay. All I’m saying is, What do other 

mines do? I mean, you’re not a loner. We’ve got a lot of coal mines 

out there. 

Mr. Roberts, are you familiar with ventilation systems? 
61 

Mr. ROBERTS. Somewhat. I’d let me try to pick up on where I 

think Don was going, here. But, there’re two different issues. 

The scrubbers—those scrubbers are placed on continuous miners 

to remove the dust from the atmosphere. That’s a health issue. 

That is so miners will not breathe excessive amounts of dust, and 

helps control the dust. Okay? It’s not necessarily a safety issue that 

might that would lead to an explosion. That’s two different things. 

The scrubbers, I would say, are for health purposes. 

Now, with respect to ventilation, every operator in the United 

States that has a coal mine, or wants to open a coal mine, has to 

submit a plan to ventilate that mine, to MSHA. MSHA either approves that plan or disapproves that plan. 

I don’t know what Mr. Blankenship means when he says, ‘‘MSHA 

made us change our ventilation plan.’’ And I’m still unclear about 

that. Those plans are the responsibility of the operators, and 

they’re either approved or disapproved. 

Now, with respect—we shouldn’t complicate this with the dust 

controls. That may very well be a legitimate debate, with respect 

to controlling the breathable dust. That’s separate, distinct from 

ventilating the mine to keep float coal dust away, and also keeping 

methane out of the face. So, when he says, ‘‘They made us change 

the ventilation plan,’’ I’m still unclear exactly what he means now, 

and it’s a little bit unclear of what he meant the other day. But, 

that’s what— the way the process works. He submits a plan—not 

necessarily him, but his engineers. And maybe MSHA disapproved 

of a particular plan they submitted, but MSHA doesn’t come up 

with the plan. 

Mr. BLANKENSHIP. You know, I—— 

Senator HARKIN. Well, again—— 

Mr. Blankenship. 

Mr. BLANKENSHIP. I consider that a play on words. 

First of all, the scrubbers can be a safety issue, because they will 

suck the methane out of the face, as well. But, I’m not pointing out 

the scrubbers as equivalent to the ventilation change. But, because 

it’s a much simpler issue, and one that makes it clear that we don’t 

decide what we can do, because we would run the scrubbers. We 

have, for my working lifetime at Massey, and they won’t let us run 

them. So—— 

Senator HARKIN. I just don’t understand that. But, there are 

other I keep coming back to this point—there are other mines—— 

Mr. BLANKENSHIP. There are—— 

Senator HARKIN [continuing]. Just as deep as yours, just as big 

as yours, and they run ventilation systems, and I’ve never heard 

any problems about this. 

Mr. BLANKENSHIP. Well, you—— 

Senator HARKIN. So—— 

Mr. BLANKENSHIP [continuing]. You could hear of problems if we 

don’t allow the top industry people to have a major—a more major 

role in ventilating the coal mines. One of the big issues is whether 

you have EP points, or you don’t. And I don’t want to—I know that 

I could get too technical. 

But, the bottom line is that we’re—when we submit the plan that 

we think is best for the ventilation of a room-and-pillar mine or a 
62 

longwall, they deny it until we submit what they would like for us 

to have. And many times, it is not the plan that we prefer to have. 

Senator HARKIN. I’ll follow up on that with questions for you, but 

also with with— MSHA also, on that. 

Mr. BLANKENSHIP. Thank you. 

Senator HARKIN. I will send written questions, to get that fleshed 

out a little bit more. 

My last question, basically, is this; and that is, you talked about 

MSHA, you sort of alluded to the fact that they’re investigating 

themselves, here, as pertains to this ventilation system. You mention that, and you say you don’t know whether that played a role 

in the explosion—none of us know that yet—you don’t know. But, 

you allude to the fact that MSHA cannot be trusted to do this investigation, because they are kind of investigating themselves. 

Would you like to elaborate more on that? And, I’m going to ask 

Mr. Roberts, also. Are you saying that there should be a separate 

entity, other than MSHA, to do this investigation? And is there one 

that is qualified, in terms of mining safety, to do this kind of investigation? 

Mr. BLANKENSHIP. I think the qualifications would be very difficult, and I don’t know that I have a particular entity in mind. 

But, you have situations, for example, where the NIOSH branch, 

that was represented up here today, seems not to agree with 

MSHA, for example, on the scrubs. But MSHA has that rule in 

place. I think that we need—as we are doing at Massey, by the 

way—go through the entire process of how our safety is set up, 

whether there’s any, you know, validity at all to these accusations 

that people are afraid to call, whether there’s any validity at all 

that we are understaffed. We’re going through that entire independent review of our safety—our board is—as a way to make sure 

that we’re right. We believe we’re totally right, in terms of how 

we’re structured and how we manage our safety department. I 

think MSHA needs to do that same thing. And I think companies 

that have a disagreement with MSHA about ventilation and 

scrubs, and so forth, need an appeal mechanism, where they can 

go and say, ‘‘Look, this is what we want to do and this is what they 

want to do. Give us a chance to do it the way we think is best.’’ 

So, I think there’s room for that. 

And I don’t know, in answer to your question, who exactly would 

be qualified to oversee this investigation. But, certainly we think 

it’s in the best interest of the coal miner, the ones that I live 

among, to get a true, independent assessment of what happened 

here. 

Senator HARKIN. Mr. Roberts, do you have any thoughts? 

Mr. ROBERTS. We—actually, I knew if we stood here—stayed 

here long enough, there might be something we would somewhat 

agree with. We—the UMWA asked MSHA and the DOL to conduct 

this hearing publicly. And the reason we felt that was so important 

was, number one, MSHA does not have subpoena powers in these 

closed hearings. So, what that means is, if they ask Don to testify, 

or they ask me to testify, I can either come or I can say, ‘‘No, I 

don’t want to.’’ In a public hearing, the law gives MSHA the power 

to subpoena me, or subpoena Don, or anybody else they want to. 
63 

In these private hearings, the miners’ representative which, by 

the way, we are the miners’ representative at Upper Big Branch, 

because the law is different for investigations and safety representatives than it is for representing people in collective bargaining— 

we have been asked, by miners at Upper Big Branch, to represent 

them in this investigation. In this investigation, we will not be allowed the union will not be allowed—to be in the room when witnesses are being interviewed. And we think that’s not a good thing. 

We don’t think it’s a good thing for anyone. The families are not 

allowed to be in the room when these witnesses are being interviewed. If we have a public hearing, the families can be there, the 

miners’ representative can be there, and anyone who would like to 

be could be there. 

Now, we’ve been told that the reason that they have decided to 

close these hearings is because of the Department of Justice’s investigation. They have FBI agents—a lot of FBI agents in southern 

West Virginia, and I applaud that. But, I don’t really see how having a public hearing, where whatever Massey Energy did, or whatever MSHA did, or whatever the State government did, could be 

considered, and we could learn from that, and we could learn immediately. 

The problem we’ve got here is none of us are going to see this 

evidence for a year. None of us are going to see what the witnesses 

said. But, I do want to step up, right now, and say I have full confidence in the Secretary of Labor, Hilda Solis. I think she was a 

fine appointment. And Joe Main worked for us for 30 years. And 

I said, in another hearing, that, before this is all over, people will 

be coming in here and saying, ‘‘Joe Main is too tough on us.’’ And 

I know that will happen, because he’s aggressive, he has dedicated 

his entire life to protecting coal miners. And he will do that here. 

He will probably run the most thorough investigation we’ve ever 

seen. But I do think it’s wrong to have this hearing in private, and 

all of us try to figure out traipse behind to figure out what happened. And, you know, I’ve got strong feelings about—and I’ve expressed them here today—but, I do think everyone’s got a right to 

defend themselves. And I wouldn’t deny that right to anyone. But, 

we’re not doing that here, we’re in a situation where this is going 

to be an investigation, and we’re going to be part of it. We’re going 

to go in the mine, when it opens, our people will, and we’ll see 

what happened, with respect to where the explosion traveled, how 

much damage it did. We’ll all try to come to an opinion with respect to that. 

But, trying to do that in isolation of knowing what the witnesses 

said, at the time this mine—right before it exploded there were 

miners who, I know personally, had to run out of this mine, and 

barely got out. We talked about the Davis family losing three family members. Tommy Davis, Cory Davis’ dad he was in that mine 

and was running out and it blew him down. So, that family could 

have been hit with four family members, here, and perhaps five. 

There’s a fifth young man in there that was the son of Timmy 

Davis. So, this could have been even worse than it was. 

But, we don’t know—we’ve talked to people. Look, we talked to 

about 90 people here. But, we haven’t—we’re not going to be privy 

to these witnesses getting up on the stand. And MSHA—they’re not 
64 

going to be subpoenaed. They don’t have to come, and they don’t 

have to talk. And I think that we need these people to be sworn 

in and everyone tell what they know, so we can get to the bottom 

of this and everybody know what happened here so there won’t be 

any doubts about what anyone did here. 

Senator HARKIN. Thank you very much. 

I know Senator Byrd had one last question. 

Senator BYRD. Thank you, Mr. Chairman. 

Mr. Blankenship, according to the news media, a major source of 

the gas buildup at the Upper Big Branch mine, may have come 

from a coal shaft that had never been properly sealed. According 

to one article, quote, ‘‘Rags and garbage were used to create a poor 

man’s sealant’’—S-E-A-L-A-N-T ‘‘which allowed methane to permeate the mine, displacing much needed oxygen.’’ 

Mr. BLANKENSHIP. I’ve seen that same report, followed up on it. 

As best I can figure out, it’s not the case of the hole, or the shaft, 

you’re speaking of was a hole that was for the purpose of transporting coal from a mine above it that was no longer in use. And 

it was filled with coal and rock, and inspected by MSHA. And, as 

I understand, it was fine. There were, to my understanding at this 

point and I want to be careful not to rule out any source of the 

methane this early—it’s my understanding that it’s highly unlikely 

that that hole, which was sealed with coal and rock, would have 

played any role in this explosion. 

Senator BYRD. What other irregular ventilation is allowed at 

Massey mines? 

Mr. BLANKENSHIP. Well, I don’t know of any irregular regulation. 

We ventilate our mines as best we know how, to the extent that 

MSHA will allow us to ventilate that way. And then we do our best 

to, in concert with MSHA, come up with safe and healthy ventilation plans. 

Our mines, as you know, Senator, in central Appalachia, are different than they are in Pennsylvania. We have a lot of—a lot more 

overmining and undermining, and we have to be worried about 

positive and negative pressures of the air, drawing bad air out of 

other mines. And we prefer, as I said earlier, blowing ventilation 

on our miner sections. And we certainly prefer running our scrubbers. And we believe that there are many things that can be done 

to improve, or lessen, I should say, the likelihood of this type of 

thing happening again. And, in many cases, there are things that 

we can’t do. We need to do a better job regulating gas wells in 

these regions. We need to do a better job of mapping, which was 

one of the events at Q Creek. There’re a lot of things that need to 

be done that can only be done, if you will, by the Government or 

the regulatory agencies. 

But, as far as that hole, in particular, I don’t think that it contributed to the explosion. But, that’ll be part of the investigation. 

Senator BYRD. Mr. Blankenship, what recordkeeping system exists to corroborate your testimony? 

Mr. BLANKENSHIP. I don’t know which piece of my testimony 

you’re referring to, but let me say that when I saw the rate of violations that were occurring in 2008, post the new MINER Act and 

so forth, we enacted an effort to really well measure what our violations were. And we had a very difficult time, using the combina-
65 

tion of our data internally and the MSHA Web site, figuring out 

what our violation count was. It took us a good time—a good 

amount of time to figure that out so we could apply the resources 

in the right place to reduce violations. And we did that. 

But the records on NFDL rates, the records on the what we’ve 

done on safety innovation and the 120 rules—and so forth—are all 

there for reviewing, if and when that is, you know, appropriate. 

Senator BYRD. Mr. Chairman, I want to thank Mr. Roberts and 

Mr. Blankenship for their testimony. 

Mr. BLANKENSHIP. Thank you, Senator. 

Mr. ROBERTS. Thank you. 

Senator HARKIN. I join you, also, in thanking you both for being 

here. 

And, you know, we all know that mining is a dangerous occupation. Anytime you go below the ground and you’re dealing with explosives, you’re dealing with all of the things that face miners, it 

is a hazardous occupation. But, that’s why, over the years, we’ve 

tried to do everything we can to put policies in place to lessen that, 

to make it so that—like Mr. Roberts said, so that people don’t write 

letters saying, ‘‘Well, I hope I see you tonight.’’ 

Perhaps you can’t get 100 percent assurance, but you can get 99 

percent. And we’ve got to do everything we can to make sure that 

miners are protected from these kinds of tragedies. 

So, we’ll look at what we need to do at MSHA, what we need to 

do legislatively, here to address this. We are, of course, like you, 

anxious to see the outcome of the investigation. 

I am going to talk to the SOL about what both of you said in 

open proceedings and the issuing of subpoenas in open, which you 

can’t do in private. I will talk to the SOL about that and try to get 

that input, also. 

But, I just well—I feel like Senator Byrd, we just can’t keep coming back here all the time, and having something happen to miners. We just can’t keep doing this. I mean, I’ve only been here 25 

years. And it just seems like, about every 5 years, we’ve got something—we’ve got to come back here, miners have died. They’ve died 

in tragic accidents. And we say, ‘‘Well, we’re going to fix it.’’ And 

then something like this happens, the worst one in 40 years. With 

all of the modern technology we have, with all of the knowledge 

we’ve accumulated over the years as to safety precautions that 

need to be taken, with all that, 29 miners lose their life. 

I just don’t want—we just don’t want to keep coming back to 

this. We have to get in place, for miners, safety measures that they 

can rely on. And that’s really the basis of what we’re trying to do 

here. 

So, I appreciate your testimony. But, this subcommittee will not 

rest until we change some of these processes and procedures, and 

look at what we need to do to make sure that this accident, this 

kind of tragedy, doesn’t happen again. 

I don’t doubt, for a minute, Mr. Blankenship—I don’t doubt, for 

one minute, that you feel badly about what happened, that you 

don’t care about your people. Of course you do. And so does Mr. 

Roberts. I’ve known Cecil for many years. I know how deeply he 

cares about the people he represents, the UMWA. 
66 

ADDITIONAL COMMITTEE QUESTIONS

Sometimes, caring is not enough. I know you care. I don’t doubt 

that for a minute. But, it’s looking at the policies and procedures 

that— what is implemented. It’s a culture of safety, and when you 

have hazardous conditions like that, of making sure that everyone 

understands that safety must come first. It must come first. Not 

how much coal you’ve produced. I understand you’ve got to make 

money. And I understand we need the coal for energy. We all know 

that. But, in this kind of a thing, safety has to be the first thing 

that comes first. 

And, like I said, I know you care, I know Cecil cares, and we all 

do. But, we’ve got to change something here to make sure it doesn’t 

happen again. 

Thank you both for being here. 

Mr. ROBERTS. Thank you. 

Mr. BLANKENSHIP. Thank you. 

[The following questions were not asked at the hearing, but were 

submitted to the Department for response subsequent to the hearing:] 

QUESTIONS SUBMITTED TO HON. JOSEPH A. MAIN

QUESTIONS SUBMITTED BY SENATOR TOM HARKIN

Question. Mr. Main, I applaud the blitz inspections that you ordered last month. 

As you’ve said, inspectors can’t be in all parts of every mine, every day, on every 

shift, so the Mine Safety and Health Administration (MSHA) must be smart about 

how it implements its inspection activities. How many additional ‘‘blitz inspections’’ 

will you conduct under your current budget and the 2011 budget request? 

Answer. From April 19–23, 2010, MSHA conducted impact inspections (‘‘blitz inspections’’) at 57 targeted underground coal mines whose history of underground 

conditions indicated a significant number of violations related to methane accumulations, ventilation practices, rock dust applications, and inadequate mine examinations. Unlike the statutory inspections that are conducted of the mine in its entirety, 

MSHA focused on conditions associated with an explosion, i.e., methane, mine ventilation, and rock dusting, and captured the phones to prevent advance notification 

of MSHA enforcement presence at the mine. MSHA issued 1.454 citations, closure 

orders and safeguards to those 57 coal mines. MSHA also conducted impact inspections at other coal mines and expanded impact inspections to include metal and 

nonmetal mines with violation histories indicating hazardous conditions where injury or death could result from ground control, fire protection, safe access, or explosives storage. During the period of May 3 through 6, MSHA issued 534 citations and 

orders to 15 metal and nonmetal mines. 

MSHA intends to conduct additional blitz inspections during the remainder of this 

fiscal year and in fiscal year 2011 on an as-needed basis. 

In addition to focusing on mines with violations that indicate a history of particular conditions, future blitz inspections will also be conducted in tandem with 

MSHA’s pattern of violations program. MSHA is currently working on reforms to 

the administrative guidance on the pattern of violations screening criteria to better 

reflect the intent of the act. These changes can be implemented prior to the completion of current rulemaking and any possible legislative reforms. I have directed 

MSHA staff to evaluate how we can enhance the pattern of violations program with 

use of blitz inspections to broaden the net on problem mines and noncompliant operators. 

We are currently in the formative stages of planning and have not yet determined 

the scope of these inspections, the specific number we plan to conduct, the resources 

necessary to support these efforts, and how to utilize blitz inspections within our 

budget request for 2011 while continuing to ensure that we complete all regular 

mine inspections. 

Question. Mr. Main, I have been working with the Department of Labor (DOL) 

on the issue of worker injury under-reporting in the context of the Occupational 

Safety and Health Administration. As a result, DOL is now doing additional work 

to better understand research that points to a potential undercount of worker inju-
67 

ries as reported by employers. Can you shed some light on this issue in the mining 

industry and actions MSHA is taking or considering to ensure that injury counts 

obtained by operators are reliable and fully representative of the incidence of injuries in the industry? 

Answer. MSHA requires mine operators and mining contractors to report all injuries and occupational illnesses which result in death, days away from work, or days 

of restricted work activity. MSHA inspectors periodically conduct audits to ensure 

that the information submitted to MSHA is complete and accurate. These audits include a review of mine tiles; interviews with management, miners, and representatives of miners; and a comparison of reported injuries with workers compensation 

records when they are available. 

MSHA recognizes that some mine operators under-report injuries and occupational illnesses. What we don’t know is the extent of under-reporting. One of the 

challenges to fully understanding the problem and identifying under-reporting is 

that our audit program is conducted by inspectors, and an increase in our audits 

would redirect resources from the other critical work of regular mine inspections. 

We have particular concerns about the completeness and accuracy of reporting by 

mining contractors. Under current regulations, contractors do not report on a mineby-mine basis, making the data they provide less useful and less amenable to a 

meaningful audit. Contractors perform considerable work in the mining industry 

and information on man-hours worked is necessary to determine the rate of injuries, 

illnesses, and deaths by contractors. 

However, we are not waiting for legislation to attack this problem. To better understand the scope of the problem of under-reporting. DOL is launching a study of 

injury and illness reporting by the mining industry, which will lead to a better understanding of the problem, and ultimately to better injury and illness data. The 

study is being funded through the Departmental Management Evaluation Fund. 

MSHA will use the findings of this study to ascertain the degree to which operators and contractors currently report injuries and illnesses and determine the need 

for additional training, audits, and enforcement. Improving reporting of injuries will 

have a direct, positive impact on worker safety. In the interim, MSHA will continue 

to conduct part 50 audits and take enforcement actions whenever appropriate. 

Question. Would you please provide more details on the better operational and 

emergency response needs that you have identified for additional investments? 

Please explain the specific needs and associated costs. 

Answer. MSHA has performed a detailed assessment of the gaps in mine emergency response, including the response of mine operators and Federal and State governments. Several critical areas need to be improved to increase the probability of 

successfully rescuing miners during a mine emergency. MSHA provides specialized 

mine emergency response equipment and mine rescue teams to assist in mine emergencies. The equipment that MSHA provides includes an Incident Command Vehicle, Mobile Gas Chromatography Laboratory, Miner Location System, Communication Vehicle, Mine Rescue Robots, etc. Investments in technology and equipment 

will improve our capabilities and allow us to locate equipment in geographically diverse areas, significantly improving response time. Since actions in the first few 

hours of a rescue can dramatically improve the chance of a successful outcome, we 

arc proposing to establish equipped trailers with basic first-response equipment in 

each of our 11 coal district offices and to establish caches of additional supplies in 

2 field locations. We are also proposing to establish capabilities to analyze mine 

gases in 4 geographically dispersed locations. The total cost of this equipment is estimated at $700,000. 

In order to improve coverage, we are also proposing to add one equipped mobile 

gas laboratory and mobile engineering office in Denver, Colorado or Price, Utah. 

Currently, this equipment must be transported from the eastern stations. This 

would dramatically improve the response time to many mines in the Western 

United States. The total cost is estimated at $700,000. 

Continuous, secure, and rapid voice and data communications is critical from initial deployment to a mine emergency until the operation concludes. Communication 

between responders, rescue teams, and district and headquarters offices need to be 

constantly maintained, so that the best available expertise can be applied as rapidly 

as possible, and decisions are made considering all available data. Many mining operations are in remote areas where cellular phone coverage is not available, and 

radio communication is challenging due to extreme topographic conditions. Further, 

communication must be secure to prevent the dissemination of misinformation to 

the families of trapped miners and the public at large. We are proposing fully 

equipped communication vehicles for the eastern and Western United States, with 

secure communications, including phones, radios, networking capabilities, teleconferencing, etc. The total cost is estimated at $1,075,000. 
68 

We are also proposing maintenance and upgrades to our existing Mine Emergency 

Operations fleet. This includes the Command Vehicle, Engineering Trailer, an electrical generator power supply vehicle, a trailer for mine rescue robot storage and 

transport, replacement of obsolete mine emergency operations computers, etc. The 

total cost is estimated at $705,000. 

I held a national mine emergency response conference with the mining industry 

on May 11, 2010 to address gaps in Government, industry, and mine rescue team 

response. Since it takes hours to transport MSHA mine emergency equipment when 

an emergency strikes, the need for the mining industry to quickly provide additional 

mine emergency resources to fill the gaps was addressed at the conference. 

Question. Also, please describe how MSHA has utilized its increased appropriation 

over the past 3 years for these purposes in terms of specific upgrades and expenditures. 

Answer. MSHA’s appropriations increases were used for the following: In fiscal year 2007, MSHA purchased Self-Contained Self Rescuers (SCSRs) for $200,000 and 

two mine emergency trucks for approximately $560,000. In fiscal year 2008 and 

early fiscal year 2009, MSHA expended $485,000 to purchase Mine Emergency Unit 

equipment, including SCSRs, Biopacks, multigas detectors, radios, and cap lamps, 

for the Pittsburgh, Beckley, and Price rescue stations. The purchase upgraded outdated equipment and replaced consumables to meet the critical need to have supplies available wherever the MSHA coal mine rescue team may suddenly be asked 

to deploy. In fiscal year 2009 MSHA purchased seismic equipment including: a truck 

designed to carry seismic equipment, system recorder, software, and a computer for 

use during mine emergency response. MSHA let a contract to re-write the system 

software so that it would he usable with new operating systems. Cost for upgrades 

in fiscal year 2009 totaled $302,000. 

Question. For each of the past 5 years (including the current year to-date,) how 

much funding has been allocated from DOL using the authority provided in MSHA’s 

appropriation to spend funds on the costs of mine rescue and survival operations 

in the event of a major disaster? 

Answer. MSHA has not received any funding from DOL under the cited authority 

in the last 5 years. 

REVIEWERS NOTE: MSHA’s appropriation language states ‘‘. . . and any funds 

available to the Department of Labor may be used with the approval of the Secretary, to provide for the costs of mine rescue and survival operations in the event 

of a major disaster.’’ 

Question. How has MSHA utilized the authority provided in the appropriations 

bill to promote health and safety education and training in the mining community 

through cooperative programs with States, industry, and safety associations? 

Answer. MSHA promotes health and safety education through a variety of cooperative programs. The MSHA State Grants Program provides funds to assist States 

in mine safety-related activities as provided in section 503 of the Mine Act. In fiscal 

years 2008, 2009, and 2010, MSHA’s annual award to States in the program was 

$8,441,000. The State grant provides health and safety training in 49 States and 

the Navajo nation. Annually, the grantees provide training to approximately 

225,000 miners. This training includes new miner and annual refresher training as 

well as specialty topics including mine rescue training. 

The Brookwood-Sago Mine Safety grant provides funds for targeted educational 

and training programs and materials exclusively developed for mine emergency preparedness. Since fiscal year 2007, $500,000 annually has been made available for 

these grants. 

MSHA assists the Joseph A. Holmes Safety Association, a nonprofit association 

created in 1916, to promote health and safety in the mining industry, by providing 

technical assistance in coordinating efforts through grass roots safety and health 

programs and activities to the mining community. The organization is comprised of 

representatives from mine management and labor, State and Federal Government, 

academia, and vendors. This program recognizes exemplary safety records both corporately and individually and presents nationally recognized awards. 

Question. How much funding would be used under the 2010 appropriation and 

2011 request for this purpose? 

Answer. MSHA’s State Grant Program will provide $8,441,000 in grants to the 

States in fiscal year 2010. The fiscal year 2011 request continues this amount for 

State grants. In addition, MSHA will provide $500,000 in Brookwood-Sago grants 

in fiscal year 2010, and is requesting the same amount for fiscal year 2011. 

Question. How will these activities specifically help miners report safety and 

health problems without fear of reprisal? 

Answer. A major issue for MSHA is to ensure all miners are aware of their rights 

afforded to them under the Mine Act and have the opportunity to exercise those 
69 

rights without fear of reprisal. Upon my confirmation, I began a review of miners’ 

rights protection programs carried out by MSHA to improve those. Our activities in 

this area have included improving inspectors’ response to health and safety complaints, speeding up investigation and action on discrimination complaints filed by 

miners, and providing improved training to miners on their rights and protections 

afforded by the Mine Act. Currently, MSHA is in the process of updating existing 

Miners’ Rights materials and developing new online content as well as a Miners’ 

Rights DVD. These materials will be distributed to all grantees for inclusion in their 

training. As with previous initiatives, we will ask the grantees to utilize these materials in support of the Department’s new strategic plan, including the ‘‘Voice in the 

Workplace’’ outcome goal. Since the grantees provide training for a large number 

of miners, we are confident that the Miners’ Rights training conducted by the grantees will provide miners with a better understanding of their rights and protections. 

We are also making these materials available to miners and operators and will be 

distributing copies to other instructors and organizations who conduct miner training. We will continue to look at innovative ways to educate miners on their rights 

using MSHA-developed materials, including through our grantees. 

Question. Lastly, the 2010 appropriations bill encouraged MSHA to consider a 

comprehensive review of safety and health programs. Please describe the actions 

taken and planned for this review. 

Answer. The agency continues to review health and safety programs. To date in 

fiscal year 2010, personnel from MSHA’s Educational Field Services (EFS) made 

3.692 visits to mines, facilities, and training centers. Their main focus is to observe 

work practices, review, and evaluate training plans and programs and monitor instructors, making recommendations for improving miner health and safety. Also, to 

ensure MSHA-approved instructors are providing our miners with quality training, 

the EFS personnel and contractors hired to specifically evaluate MSHA-approved instructors have evaluated more than 776 instructors this fiscal year. 

Also, this fiscal year the Small Mines Office (SMO), which focuses on mines with 

5 or fewer people, has helped 1,600 small operators develop and maintain a safety 

and health program. During each SMO visit, specialists use a safety and health 

audit to show the most cited standards at their type of mining operation. The field 

specialists assist mine operators at mine sites to identify conditions that are out of 

compliance or those conditions or practices that require maintenance or management controls to ensure compliance. In addition, they explain miners’ rights to the 

operators. In the fiscal year 2011 budget, MSHA plans to redeploy the work of the 

small mines office to its district offices to provide better geographic coverage and 

increased efficiencies in providing these services to small mines. 

To ensure operators are providing effective training MSHA will continue evaluating instructors and training programs. 

Question. MSHA has the authority to retain up to $1,000,000 in fees collected for 

the approval and certification of equipment and use the fees for the same purposes. 

How much was collected under this authority last year? Answer. MSHA collected a total of $1,125,000 in fees during fiscal year 2009. Of the total, MSHA retained $1,000,000 and used these fees for mine equipment certification and approval. MSHA returned the remaining $125,000 to the Treasury. 

Question. Could additional fee collection help support more timely approval and 

certification of mine equipment, without depressing interest in research and development in this field? If so, what would be an appropriate level for 2011? 

Answer. An expanded budget authority to retain fees could allow MSHA to further reduce the current backlog of approval applications and expedite the process 

for the approval and certification of equipment and materials. The additional authority could support infrastructure improvements and state-of-the-art testing of 

equipment to more efficiently conduct approval testing and quality control auditing 

of equipment and materials. The subcommittee may consider increasing the level of 

retained fee collections to $1,500,000 for fiscal year 2011. 

Question. Please indicate the current status of MSHA recommendations contained 

in DOL Inspector General reports over the past 4 years. For any open recommendations, please explain why they are not yet closed. 

Answer. The following is the status of MSHA recommendations contained in DOL 

Inspector General reports over the past 4 years. 

Report 05–08–003–06–001—Crandall Canyon Mine 

(Total 9 recommendations: 6 closed, 3 open) 

Rec. Establish explicit criteria and guidance fir assessing the quality of and potential safety risk associated with, proposed plans. 

MSHA has worked closely with the National Institute for Occupational Safety and 

Health (NIOSH) in the past to formulate a pillar recovery risk factor checklist. A 
70 

study, which has been completed contains specific recommendations concerning the 

mining of barrier pillars, splitting pillars at deep cover, burst assessments, etc. In 

conjunction with the study, NIOSH has also revised the Analysis of Retreat Mining 

Pillar Stability (ARMPS) software, which will affect the MSHA evaluation of certain 

aspects of deep cover pillar plans. While MSHA has been briefed on certain aspects 

of the study and the changes to ARMPS, explicit criteria and guidance for assessing 

proposed plans have not been formalized due to the lack of a final NIOSH report. 

NIOSH presented a workshop on the new ARMPS software to Roof Control Division (RCD) personnel and Coal Mine Safety and Health (CMS&H) Roof Control Supervisors at the MSHA Academy. This allowed both MSHA enforcement and Technical Support personnel a final opportunity to comment on the new ARMPS software prior to its release. In our opinion, it is an improvement over the current 

version, especially in the area of deep cover pillar retreat mining. Once the new 

ARMPS software is released, the RCD will be in a position to establish/update criteria for assessing the potential safety risk associated with proposed mining plans. 

The projected completion date for the issuance of MSHA guidance is 60 days after 

the release of the new ARMPS software and the NIOSH report to Congress. 

Rec. Issue policy and guidance on the use of computer models, including appropriateness of input values and use of model results. 

MSHA has worked closely with West Virginia University (WVU) on computer 

model guidance and issued a Program Information Bulletin, ‘‘Precautions for the 

Use of the Analysis of Retreat Mining Pillar Stability (ARMPS) Computer Program’’ 

(PIB P08–08). WVU is nearing completion on their project to develop guidelines for 

the use of LAMODEL (LAMODEL is software used for calculating stresses and displacements in coal mines). The end result of this WVU project will be the publication of a user’s manual and a workbook for LAMODEL. The projected completion 

date for MSHA’s policy/guidance is 60 days after the issuance of WVU’s user’s manual and workbook for LAMODEL. (Projected completion: July 30, 2010.) 

Rec. Establish a Memorandum of Understanding with the Bureau of Land Management to share inspection or other information on mine conditions affecting safety. 

MSHA did enter into a Memorandum of Understanding (MOU) with the Bureau 

of Land Management (BLM) April 8, 2008, to share inspection or other information 

on mine conditions affecting safety. As recommended by the OIG, MSHA has contacted BLM officials to discuss potential revisions to the MOU. Areas under discussion include extending the MOU to include surface coal mines and to address areas 

of mutual concerns such as subsidence monitoring, coal bed methane, ground control, etc. (Projected completion: August 31, 2010.) 

Report 05–09–002–06–901—American Coal Company 

(Total 5 recommendations: 2 closed, 3 open) 

Rec. Establish a written plan for eliminating the current backlog of overdue mine 

plan reviews and maintaining timely reviews in the future. 

MSHA took corrective actions to address backlogged mine plan reviews and maintain a timely review process. Additional guidance and staffing plan were issued to 

districts through CMS&H Memo No. HQ–09–048–A (ORM–8). ‘‘Complaints Received 

from American Coal Company Complaint #1: Timely Mine Plan Approval.’’ Data 

summarizing the status of backlogged plan reviews (reduced by 78 percent as of 

February 2010) was provided to the OIG for their review. 

Rec. Issue a written policy or, if necessary, pursue legislation to establish the basis 

far and circumstances under which inspectors are not required to comply with tracking requirements of ERPs during an inspection. 

The General Inspection Handbook and the Hazard Condition Complaint Handbook (and related HCC database) will be revised to include the requirement that 

inspectors document in their notes compliance with CMS&H Memo No. HQ–09– 

049–A (ORM–8). (Projected completion: September 30, 2010.) 

Rec. Issue written guidance to its inspectors and to mine operators, consistent with 

existing laws and regulations that clarify its policy regarding the proper evaluation 

of a bleeder system. 

MSHA has developed and drafted guidance (multiple Program Policy Letters 

(PPLs)) on ‘‘Effective Bleeder Systems.’’ Because of their technical nature, they are 

undergoing extensive Agency review. (Projected completion: July 30, 2010.) 

Report 05–08–002–06–001—Chargeable Fatalities 

(Total 7 recommendations: 3 closed, 4 open) 

Rec. Develop and implement a standard protocol for first responders. 

Rec. Establish and require a standard investigative protocol for all reported fatalities. 
71 

Rec. Require that a chargeability determination be made only at the conclusion of 

a complete investigation and considering all pertinent and available evidence. 

Rec. Establish a system to assure that all facts and information used to reach a 

chargeability decision are supported by documentation. 

MSHA implemented corrective actions to address the above recommendations. 

The written protocols were also formally incorporated into a revision of MSHA’s Accident/Illness Investigations Procedures Handbook. Issuance of the Handbook was 

delayed in order to incorporate additional revisions resulting from a change in the 

issuance of orders under sections 103(j) and (k) of the Mine Act, as well as formal 

bargaining with the National Council of Field Labor Locals (NCFLL). (Projected 

completion for issuance of the revised Al Handbook: July 30, 2010.) 

Report 05–08–001–06–001—Underground Inspection Mandate 

(Total 7 recommendations: 6 closed, 1 open) 

Rec. Ensure policies and procedures are developed for calculating the regular safety and health inspection completion rate and ensuring the inspection data used is 

correct. 

MSHA implemented corrective action to address the above recommendation. The 

written protocol will also be formally incorporated into a revision of the Program 

Policy Manual (PPM), (Volume I, section 103, Inspections, Investigations, and Recordkeeping). (Projected completion: September 30, 2010.) 

Report 05–06–006–06–01—Hazardous Condition Complaint Program 

(Total 13 recommendations: 10 closed, 3 open) 

Rec. Ensure that the expectations of timeliness for completing evaluations of hazardous condition complaints under the Mine Act, 30 CFR 43, and MSHA policy are 

consistent and quantified in specific terms (e.g., number of hours). 

Rec. Ensure that the expectation of timeliness for beginning inspections of ‘‘imminent danger’’ allegations is quantified in specific terms (e.g., number of hours), and 

the subsequent inspections are started within those specific timeframes. 

A protocol has been developed to address the timeliness of both the evaluation of 

hazardous condition complaints and the investigation of imminent danger allegations. This written draft policy is currently under management review. Once finalized, it will be incorporated into the Hazardous Condition Complaint (HCC) Handbook. (Projected completion: September 30, 2010.) 

Rec. Ensure inspector notes receive appropriate supervisory review. 

MSHA implemented corrective actions to address the above recommendation. The 

written protocol will be incorporated into a revision of the HCC Handbook. (Projected completion: September 30. 2010.) 

Question. This subcommittee has supported the work of the Office of Accountability, which provides oversight and examination of MSHA enforcement programs 

to ensure that its policies, procedures, handbooks and guidance are being consistently applied. What have been the major findings of the Accountability Office’s audit 

activities and have the corrective actions that have been implemented to address 

these findings resulted in expected improvements? 

Answer. MSHA provided a report on the work and findings of the Office of Accountability and the corrective actions taken to the subcommittee in March 2010. 

A copy of that report is attached. 

Question. How much funding is planned to be allocated to this office under the 

2011 budget request and how many audits would be supported at this resource 

level? 

Answer. The Office of Accountability is located in the Program Administration 

budget activity. MSHA plans to allocate approximately $600,000 in fiscal year 2011 

for this office. MSHA is currently evaluating the restructuring of the agency accountability audit functions to assure that targeted areas are effectively audited. 

At this resource level, the Office of Accountability expects to conduct 24 accountability audits during fiscal year 2011. 

Question. For each of the past 5 years, please provide the number of technical specialists by type available for duty. 

Answer. MSHA has a wide variety of specialists, and each is a distinct discipline. 

Even between Coal, Metal and Nonmetal (MNM) and Technical Support, the work 

to be performed is very different. For this reason, we have reported the number of 

specialists for each of these programs separately. As of May 31, 2010, MSHA has 

the following positions in the Coal program: 
72 

COAL SPECIALIST POSITIONS 

Amount 

Underground: 

Electrical ..................................................................................................................................................... 59 

Health .......................................................................................................................................................... 56 

Roof control ................................................................................................................................................. 51 

Special investigation ................................................................................................................................... 17 

Ventilation ................................................................................................................................................... 54 

Surface: Impoundment ......................................................................................................................................... 21 

Total, coal specialist positions .............................................................................................................. 258 

MSHA is unable break down the number of underground coal specialists by expertise for past fiscal years, but can provide the following totals for underground and 

surface impoundment specialists for prior years: 

Underground 

specialists 

Surface 

specialists 

(impoundment) 

9/30/2009 ................................................................................................................................ 213 ........................

9/30/2008 ................................................................................................................................ 176 14 

9/30/2007 ................................................................................................................................ 160 13 

9/30/2006 ................................................................................................................................ 156 14 

Metal and Nonmetal had specialists in the following positions as of September 30 

of each of the following fiscal years: 

METAL AND NONMETAL SPECIALIST POSITIONS 

2006 2007 2008 2009 2010 1

Safety ............................................... 6 6 7 7 6 

Health .............................................. 6 6 6 6 4 

Industrial hygienist .......................... 3 3 1 2 3 

Total ................................... 15 15 14 15 13 

1 As of May 31, 2010. 

Technical Support had the following positions split between its Approval and Certification Center and Pittsburgh Safety and Health Training Center, as of September 30 of each year: 

TECHNICAL SUPPORT TECHNICAL SPECIALISTS 

2006 2007 2008 2009 2010 1

Electrical engineers ......................... 21 22 20 22 22 

Electronic technicians ..................... 1 1 1 I 1 

Mechanical engineers ...................... 15 15 14 15 15 

Mining engineers ............................. 20 19 17 16 18 

Industrial engineers ......................... 2 2 2 2 2 

General engineers ............................ 30 28 29 32 31 

Civil engineers ................................. 19 19 19 19 19 

Chemical engineers ......................... 1 1 1 1 1 

Fire protection engineers ................. 2 2 2 3 2 

Engineering technicians .................. 20 18 18 20 18 

Physical scientists ........................... 12 10 11 12 12 

Physicists ......................................... 1 1 1 1 1 

Physical science technicians ........... 7 7 7 7 7 

Chemists .......................................... 7 7 6 4 4 

Geologists ........................................ 3 3 3 3 3 

Mine safety and health specialists .............................................. 4 4 4 3 3 

Industrial hygienists ........................ 5 5 5 5 5 
73 

TECHNICAL SUPPORT TECHNICAL SPECIALISTS—Continued 

2006 2007 2008 2009 2010 1

Mining equipment compliance specialists ......................................... 5 5 5 5 5 

Total ................................... 175 169 165 171 169 

1 As of May 31, 2010. 

Question. How does MSHA ensure that such staff are available in sufficient number and with appropriate skills and support to carry out their important functions? 

Answer. The District Manager determines the need, area of expertise and projected workload on an annual basis and then works with the Administrator, Deputy 

Administrator, and Management Officer on the skill sets and needs, justifications, 

and budget allocations for additional personnel. The program area consults with the 

Budget Office and once approved at the Administrator level, the program area submits the justification to the Office of the Assistant Secretary for filling a new position and/or backfilling another position. Once the approval is received from the Assistant Secretary, MSHA begins the process for filling the vacancy. 

In MNM, each district is approved for one specialist of each of the three types 

(Safety, Health, and Industrial Hygienist). For example, the Rocky Mountain and 

North Central Districts do not currently have Industrial Hygienists working full 

time on this work, but assign specialist work as an ancillary duty to qualified employees currently performing other functions. An annual health conference is conducted for review, education and planning. 

In Coal, districts submit justifications for requests to hire directly to headquarters. Justifications include the rationale for the need, i.e. backfill due to attrition and ratios of the number of mines, mechanized mining units (MMUs), etc., to 

inspector or specialist. Headquarters reviews the justification and approves or rejects. Most often, specialist positions are filled from within the current inspector 

ranks; therefore, they are already seasoned journeymen inspectors. Vacancies specify the discipline or expertise that the district is seeking. Occasionally, most often 

when seeking an engineer, a vacancy is advertised to the ‘‘outside’’, that is a nonMSHA employee. 

Question. What level of support for such positions is provided in the current budget and under the 2011 budget request? 

Answer. MSHA’s fiscal year 2010 budget includes funding for the current staffing 

as well as 4 specialist vacancies in Coal, 6 vacancies in MNM, and 12 in Technical 

Support. The fiscal year 2011 budget request contains the same amount of funding. 

The total number of specialists in the proposed fiscal year 2011 budget are 262 specialists in Coal, 18 in MNM, and 181 in Technical Support. 

Question. Lastly, what are MSHA’s policies and procedures for completing review 

of mining plans, such as ventilation and roof control plans, which afford the highest 

level of safety and health for miners? 

Answer. Mining plans, submitted by operators, are evaluated and approved on a 

mine-by-mine basis and take into consideration the specific conditions at the mine. 

Each Coal Mine Safety and Health district utilizes a checklist and other guidance 

materials. including Program Information Letters (PIL) and PPLs, which are used 

to review plans to ensure all safety and health issues are addressed before plan approval. The checklist provides the reviewer with the most updated list of factors 

that must be considered on a mine-by-mine basis in determining whether a mine 

plan, once implemented, will protect the health and safety of miners. If a District 

Manager finds that the proposed plan is deficient, the checklist is used to note the 

specific deficiencies in the operator’s plan submission when a rejection letter is sent 

to the mine operator. The current checklist is used during 6-month reviews of all 

mining plans to ensure that any new statutory/regulatory requirement is added to 

the plan (or any new guidance is considered by the District Manager in light of 

mine-specific conditions) and to address plan adequacy and citation history. Plans 

that involve special reviews, such as roof control plans that are complex due to unusual geological conditions, receive additional review during the approval process. 

For such roof control plans, the operator must submit plans with additional provisions and/or data/information with the plan or any amendments. MSHA’s Directorate of Technical Support, Roof Control Division also provides analytical analysis 

to assist the District Manager in determining the adequacy of all complex and/or 

nontypical plan approvals and amendments. 

For Metal and Nonmetal mines, Escape and Evacuation Plans are reviewed twice 

annually by the district offices, as required by 30 CFR § 57.11053. Ventilation Plans 
74 

are required to be updated annually by the mine operator. Each district office reviews the plans on an annual basis as required by 30 CFR § 57.8520. 

Question. How are technical disputes with mine operators related to submitted 

plans resolved? 

Answer. In those situations where MSHA can no longer accept a provision of an 

approved plan, cannot approve a provision in a new plan, or cannot approve a proposed change to an approved plan, MSHA representatives will discuss the identified 

plan deficiency with the mine operator in an effort to gain consensus promptly on 

a modification to the provision so that the plan can be approved by MSHA and implemented by the operator. However, if the mine operator is unwilling to make plan 

modifications that MSHA believes necessary after a full and fair consideration to 

provide the requisite level of miner protection, and the operator adopts a deficient 

mine plan and/or evidences an intent to mine in accordance with an unacceptable 

plan provision, MSHA will issue a citation for a violation of the Mine Act. Unless 

the operator evidences bad faith in conducting mining operations without an approved plan, such violations generally are cited under section 104(a) of the Mine 

Act, and they do not involve unwarrantable failure findings. 

The following several paragraphs show how the three situations described above 

are handled. 

When MSHA determines that a plan provision is no longer adequate, the following plan approval revocation procedures are followed: 

—The District Manager provides written notification to the operator stating that 

changes are needed in the plan, identifies the reason(s) such changes are needed, affords the operator an opportunity to meet with District personnel to discuss any proposed changes, and sets a reasonable period of time for the operator 

to submit revised plan provisions to the District. 

—If the operator fails to timely make modifications sufficient to address the District Manager’s concerns (or through District and operator discussions the differences concerning the plan cannot be resolved and the operator does not resubmit a revised plan), a second written notification is sent from the District 

Manager to the operator. The purpose of this notification is to inform the operator that the District continues to be unable to approve existing plan provisions 

for reasons identified in the notification, specify a time by which suitable plan 

provisions must be submitted by the operator to the District, and notify the operator that after such time approval of the existing plan will be revoked and 

the operator will be without the required approved plan. Operating after the 

revocation date is a violation of the standard that permits operation of a mine 

only pursuant to an approved plan. 

—If the parties reach impasse after good-faith discussion, MSHA issues a citation, 

which the operator may contest before an Administrative Law Judge (ALJ) of 

the Federal Mine Safety and Health Review Commission (FMSHRC). The operator can request an expedited hearing. The ALJ makes a decision based on evidence provided, either requiring the operator to submit a revised plan for 

MSHA approval or finding unreasonable the District Manager’s decision to 

refuse to approve the plan as submitted. Prior to resolution by the FMSHRC, 

the operator can abate the citation and continue to mine by adopting and mining in accordance with a plan that contains provisions that MSHA has identified as being necessary to achieve the appropriate level of miner protection. 

—With this approach, there is no need to operate in violation of the mine’s approved plan, and the violation would be ‘‘technical’’ in nature. 

In the case of an operator-proposed change to an existing approved mine plan, if 

approval of the change is denied, the operator could notify the MSHA District that, 

as of a certain date, the mine’s existing approved plan is no longer adopted by the 

operator, and that the operator intends to adopt the proposed change which is not 

approved. On that date, a section 104(a) citation would be issued for the operator’s 

failure to have and adopt an approved plan, and the operator may contest the citation before a FMSHRC ALJ. Abatement would be achieved by the operator promptly 

adopting the provisions of the most recently approved plan for the mine. Again, 

there need not be any changes made in the actual mining procedures, and the violation would be ‘‘technical’’ in nature. 

The case of a new mine plan with a provision that cannot be approved would be 

handled in a similar manner. The operator would indicate that mining operations 

will begin on a particular date, using the plan that contains the provision which is 

not approved. On the date indicated for starting operations, a citation would be 

issued for failure to adopt and follow an approved plan, as required by the applicable standard, and the operator may contest the citation before a FMSHRC ALJ. 

Abatement would be achieved by the operator promptly adopting provisions that 

satisfy MSHA’s previously documented concerns. 
75 

Under each of these circumstances, once a citation is issued, the operator has the 

right to contest the violation and to present evidence to an ALJ regarding the reasons why the disputed plan provision should have been approved. Likewise, MSHA 

would present its reasons for revoking or denying approval. 

Question. According to information from DOL, roughly 95 percent of MSHA citations over the past 4 years have been or are expected to be upheld without change, 

including those that have gone to a hearing before the FMSHRC. And, Mr. Main 

indicated in his testimony that less than one-half of 1 percent of citations are vacated. However, both Mr. Main and Ms. Smith indicated that steps are being taken 

to make the citation process more objective and consistent, and address simplification of the penalty rules, which should result in fewer contested citations. Would 

you both describe the steps taken and/or planned and the funding required to support these activities? 

Answer. The steps MSHA is taking and/or plans include the following: 

—Ensuring consistency among inspectors is one of MSHA’s priorities. Currently, 

a new MSHA inspector must participate in extensive classroom training for up 

to 18 months as well as in on-the-job training with a journeyman inspector before the inspector can begin unsupervised inspection duties. MSHA is auditing 

inspector performance to improve quality and consistency. Following confirmation of Assistant Secretary Main, MSHA initiated a training program for all supervisors that includes ‘‘law, regulation, and policy;’’ ‘‘citation and order writing;’’ and ‘‘field activity review.’’ That training program assures that MSHA 

journeyman inspectors are properly overseeing on-the-job training of new inspectors. 

In addition, MSHA has recently undertaken a distance learning initiative to 

provide additional training to entry-level and journey-level inspectors. This type 

of training allows MSHA to deliver more training at a low cost to inspectors. 

MSHA currently has 18 distance-learning training programs available for coal 

mine inspectors. One example is the recently released ‘‘Rules to Live By’’ course. 

‘‘Rules to Live By’’ training focuses on 24 frequently cited standards (11 in coal 

mining and 13 in metal/nonmetal mining) associated with conditions that commonly cause or contribute to fatal accidents in the mining industry. Over time, 

the distance-learning initiative will result in improved consistency in enforcement. 

MSHA will continue to review its inspector training programs, and where necessary, adjust or expand training for improved consistency. In addition, MSHA 

is evaluating the citation writing process to improve simplicity and clarity, and 

to establish a method to locate and correct any errors in the citations that cause 

operators to file hearing requests with the FMSHRC. 

—MSHA is in the process of revising the MSHA conferencing process with mine 

operators following issuance of citations and orders but prior to the actual contesting of the citation. Under the current system utilized by most MSHA districts, the MSHA district conferences are not held to resolve disputes until after 

the penalty is contested which then requires approval by the FMSHRC. These 

settlements add to the backlog of cases pending before the FMSHRC. By holding the conferences prior to the contesting facts in dispute the violations can 

be immediately resolved and settled. 

—MSHA plans to revise its criteria for a proposed assessment of civil penalties. 

Simplifying and clarifying the procedures for the citation process and the assessment of civil penalties should eliminate some of the areas of dispute when 

a citation is issued, which should in turn reduce the number of contested citations. 

The civil penalty regulations were last revised in 2007, and adjusted for inflation in 2008. MSHA will be evaluating proposed penalties to assure that they 

are a sufficient deterrent for operators who fail to comply with safety and 

health requirements. In most of the contested cases before the FMSHRC, the 

issue is not whether a violation occurred. Instead the dispute is over the gravity 

of the violation, the degree of mine operator negligence, and other factors. Currently, when writing a citation a mine inspector determines: 

—Among five categories the likelihood of injury from the violation; 

—Among four categories the severity of an injury if one occurred; 

—The number of persons affected by the hazardous condition; 

—Whether the violation is significant and substantial; and 

—Among five categories the operator’s degree of negligence. 

Once a citation is issued, MSHA issues a proposed assessed penalty. MSHA’s 

existing civil penalty regulations involve assigning specified penalty points to a 

violation using various tables that set forth the penalty criteria in the Mine Act. 

The total points are then converted into a dollar amount using a penalty conver-
76 

sion table. Penalties increase more significantly for large mine operators, operators with a history of repeated violations of the same standard, and for operators whose violations involve high degrees of negligence or gravity. MSHA’s 

rulemaking process will consider how to simplify the procedures regarding the 

issuing of citations and the assignment of penalty points. MSHA has included 

this rulemaking on the Department’s spring regulatory agenda and plans to 

issue a proposed rule in January 2011. 

MSHA does not anticipate requiring additional funding for these activities. 

Question. During the hearing, both Mr. Blankenship and President Roberts raised 

concerns about how the accident investigation is to be conducted. I would like the 

Department’s rationale for how it’s planning to conduct this investigation. How will 

the Department ensure that this investigation is comprehensive and open and gets 

to the bottom of what caused this accident as quickly as possible, so we can avoid 

another mine accident? 

Answer. The investigation of the Upper Big Branch (Upper Big Branch) mine accident is being conducted as a coordinated investigation of MSHA and two investigative teams from the State of West Virginia. The planning of the investigative process was driven by a commitment to learn what caused the accident, to transparency 

and openness, and to ensure that the investigation does not impede the ongoing 

criminal investigation of the U.S. Department of Justice. 

The coordinated Government investigation will use all Federal and State enforcement tools that are available, including subpoenas. A Federal-State accident investigation team will conduct a physical inspection of the underground portions of the 

mine (with representatives of the miners and the mining company), collect documents and other physical evidence from Performance Coal Company and other interested persons, and conduct interviews of witnesses with knowledge of relevant 

facts. In order to facilitate the interviews, the State of West Virginia has agreed to 

issue subpoenas, and, actually, has issued a few subpoenas in cases where they 

were found it to be necessary. MSHA also intends to hold an unprecedented series 

of public hearings that will build on the information that is learned from initial investigative activities. One hearing is designed to be a fact-finding hearing; another 

will explore the technical aspects of the theory or theories surrounding the explosion; a third hearing will be a public forum that offers surviving family members 

the opportunity to express their thoughts; and a fourth hearing will be a town hall 

meeting designed to promote the exchange of ideas on how to create a ‘‘culture of 

safety’’ at mining operations, and gather recommendations for the future. Together, 

these activities will constitute the most comprehensive and open investigation in the 

history of MSHA, and MSHA will publish a detailed report of the investigative findings. 

While both Mr. Blankenship and Mr. Roberts raised concerns about the exclusion 

of their own organizations from the Government-only initial interviews, the implication that MSHA will be able to hide possible malfeasance on its part by excluding 

the general public ignores the presence and participation of the independent West 

Virginia investigators at the interviews. Members of both West Virginia investigative teams are present at all interviews and are given the opportunity to, and in 

fact do, question witnesses extensively. 

Question. Further, how will the internal review be thorough and objective, so 

MSHA and others understand what needs to be corrected at MSHA in terms of its 

adherence to its own policies and procedures? 

Answer. Consistent with its historical policy and practice, MSHA has formed an 

Internal Review (IR) Team to examine the agency’s own actions before the explosion. The IR Team, which is separate from the Accident Investigation Team, will 

collect relevant documents and information, conduct interviews of various witnesses, 

and will publish its findings, conclusions, and recommendations. 

Question. Last, how much funding is needed to ensure that the investigation and 

internal review is thorough, objective, and open? 

Answer. MSHA estimates it will need approximately $4,500,000 to conduct a thorough review of the events at the Upper Big Branch mine disaster. This reflects the 

estimated total cost for the MSHA-conducted Accident Investigation, Internal Review, and public hearings. A recent comparable investigation (Sago) cost approximately $1,000,000 for the accident investigation and internal review. The Upper Big 

Branch investigation will be on a significantly larger scale with a greater number 

of staff detailed to both the investigation and internal review. In addition, the accident investigation will consist of an initial investigation followed by a series of public hearings, which will require significant preparation and will address broader 

issues such as the reluctance of miners to come forward and report hazardous conditions at their mines. 
77 

Additionally, $1,000,000 is necessary for the potential independent investigation 

and critical review of MSHA processes conducted by the National Science Foundation or similarly esteemed organization. 

Question. How many mines have records of violations similar in number to the 

Upper Big Branch mine, and how many have a history of frustrating MSHA efforts 

to enforce compliance? 

Answer. There are 29 mines that have more Significant and Substantial (S&S) 

citations and orders than Upper Big Branch during fiscal year 2009–fiscal year 2010 

(as of June 3, 2010). Of these 29, 4 are Massey Energy Company mines. Some of 

these mines are much larger mines with more mining sections, producing more tons 

of coal and employing many more miners than Upper Big Branch. 

Question. What is MSHA doing immediately to address these mines? 

Answer. MSHA conducted impact inspections of coal mines whose history of underground conditions indicated a significant number of violations related to methane 

accumulations, ventilation practices, rock dust applications, and inadequate mine 

examinations. MSHA issued 1,454 citations, orders, and safeguards to 57 coal mines 

during the week of April 19 through 23, 2010. Since then, we have conducted additional impact inspections at both coal and metal/nonmetal mines, and we plan to 

continue to target mines with compliance problems. In six Kentucky mines where 

MSHA conducted impact inspections, MSHA found ventilation and dust violations 

that affected entire mines and consequently issued closure orders that required the 

mines to be closed until the violations were abated. 

As I mentioned in my May 20, 2010 testimony before the subcommittee, MSHA 

is endeavoring to become less predictable with our inspections. Modeled after 

MSHA’s special respirable dust emphasis inspections at underground coal mines, 

MSHA will be conducting more inspections during the off-shifts and increasing inspector presence at mines with multiple mechanized mining units. Where evidence 

warrants, enforcement personnel are ‘‘capturing the phones’’ during subsequent impact inspections and increasing our effectiveness by preventing operators from giving advance notice of our inspection activities. MSHA is also launching legal actions 

against mine operators that provide advance notice of inspections, such as the recent case involving two Kentucky coal mines. 

MSHA also plans additional ‘‘blitz inspections’’ during the remainder of this fiscal 

year and in fiscal year 2011. We are currently evaluating selection criteria for mines 

warranting targeted enforcement beginning in July 2010. 

In concert with DOL attorneys, we have identified mines with large numbers of 

contested violations for which we have requested expedited hearings before the 

FMSHRC and will request additional hearings when we find mines that would meet 

the criteria for being placed on a statutory ‘‘pattern of violations’’ absent the lack 

of final orders from the FMSHRC. 

MSHA is currently providing technical assistance to Congress on amending the 

Pattern of Violation standard contained in the Mine Act and has announced plans 

to revise the Pattern of Violations regulations and screening criteria. MSHA will 

carefully craft these regulations and screening criteria to eliminate the existing 

flaws that allow mine operators to avoid the stricter sanctions by tying up serious 

violations in litigation. 

Question. According to news media, MSHA negotiated an agreement with Massey 

Energy in 2006 to waive filing deadlines for contesting citations. Is there any truth 

to that? 

Answer. The Department’s Office of the Solicitor (SOL) negotiated an agreement 

with Massey Energy in 2006 not to oppose Massey’s motions to reopen cases under 

certain conditions. Attached are the September 2006 informal agreement and the 

May 2009 letter rescinding the agreement. Operators can contest citations, they can 

contest the penalties assessed at a later time because of those violations, or they 

can contest both. SOL entered into the agreement in 2006 to try to reduce the number of pre-penalty contests (i.e., contests of underlying citations issued before a penalty was assessed). At the time SOL entered into the agreement, Massey was filing 

a large number of frivolous pre-penalty contests so that, if it subsequently neglected 

to file timely contests of the penalties themselves, but won the pre-penalty contest 

of the underlying citation, MSHA would not be able to collect the associated penalty. 

To reduce the filing of so many pre-penalty contests, and the resulting burden of 

having to litigate the underlying violation in each case, SOL agreed not to oppose 

mistake- or inadvertence-based requests to reopen penalties that Massey neglected 

to timely contest if (1) the reopening request was filed within a reasonable time, 

not to exceed a year, and (2) MSHA would not be prejudiced by reopening. 

At the time the agreement was entered into, SOL did not oppose, and the 

FMSHRC granted, the majority of reopening requests. In practice, the agreement 

did not significantly alter the requirements for reopening previously applied by 
78 

MSHA and the Commission. The agreement did not purport to, and could not, restrict the FMSHRC’s application of existing rules and case law to reopening requests. 

A search of SOL records establishes that, during the time the agreement was in 

effect, SOL opposed Massey reopening requests at approximately the same rate it 

opposed other reopening requests. Specifically, SOL opposed four reopening requests 

and decided not to oppose seven. As to reopening requests pertaining to the Upper 

Big Branch mine, SOL opposed three reopening requests and declined to oppose 

none. 

Over the following 2 years, Massey started using the agreement for purposes beyond what it was intended and tried to claim that there was a blanket agreement 

to not object to reopening requests. The agreement clearly had outlived its intended 

purpose, and Massey’s attorneys were misapplying it. Accordingly, SOL formally rescinded the agreement. 
79 
80 
81 

Question. Were other operators offered similar waivers? Please list the number of 

exemptions granted and deadlines waived annually. 

Answer. SOL does not have authority to grant exemptions or waive deadlines. 

Only the FMSHRC can decide whether to allow an operator to reopen a case. SOL 

offered no other operators a similar agreement not to oppose reopening in certain 

specified circumstances. 

Question. Why is MSHA not issuing an Emergency Temporary Standard to expedite its rule-making agenda? 

Answer. MSHA has not ruled out the use of Emergency Temporary Standards 

(ETS). The Mine Act allows MSHA to issue an ETS when the Secretary determines 

that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and that an emergency standard is necessary to protect miners from that danger. MSHA can only 

issue an ETS for health and safety standards promulgated under section 101 of the 

Mine Act. Because the regulation concerning Pattern of Violations is not a mandatory safety or health standard, this is not among the possible areas where an ETS 

would be implemented. 

Question. Why is MSHA unwilling to revisit the screening criteria for pattern violators outside of the formal rulemaking process? 

Answer. MSHA is not unwilling to revisit the screening criteria for pattern violators outside of the formal rulemaking process. Prior to the Upper Big Branch mine 
82 

disaster, MSHA was working on new screening criteria within the current regulations. Following the mine disaster, Congress requested that the Office of the Inspector General (OIG) review the pattern of violation screening criteria and report recommendations. Realizing that the pattern of violation system was broken, MSHA 

pledged to work with the OIG to evaluate the screening criteria to make improvements. MSHA is also currently providing technical assistance on legislation affecting the pattern of violation standard contained in section 104(e) of the Mine Act 

which could lead to possible amendments of the statute. With that in mind, along 

with plans by MSHA to revise the pattern of violation standards, MSHA will continue to work on new screening criteria. 

Question. The National Institute for Occupational Safety and Health (NIOSH) has 

studied the most severe mine explosions to identify ignition locations and sources. 

NIOSH linked many fatalities to nonpermissible electrical equipment located in intake air courses. What is MSHA doing to address this and other issues raised by 

NIOSH? 

Answer. MSHA is interested in this research and the potential to increase protection to miners from explosions involving nonpermissible equipment. MSHA is reviewing the results to determine what improvements can be pursued. 

Question. MSHA and NIOSH are investigating an activation problem with the 

SR–100, which is an emergency breathing device that has been recalled. What is 

the status of the joint investigation? 

Answer. On April 30, 2009. NIOSH, MSHA, and the CSE Corporation (CSE), the 

manufacturer of the SR–100, met to discuss progress on the investigation. CSE advised that the engineering company could not replicate the leak, but suspected the 

threaded connection between the valve and the cylinder body on the start-up oxygen 

cylinders could be the cause of the problem. They suspected that the application of 

the sealant on the threads was irregular on cylinders that leaked, which would be 

a Quality Assurance (QA) problem on received cylinders from Afrox (a South African 

company). The QA problem that Afrox may have is a manufacturer’s final inspection 

and test process issue. Also, CSE’s incoming inspection QA process may have to be 

improved to identify the cylinder defects prior to final assembly. NIOSH and MSHA 

told CSE that because the root cause cannot be identified, and since the problem 

cannot be confined to any particular subset of the population of start-up cylinders, 

the problem could potentially be found in any start-up cylinder in the field. We requested CSE to issue a second User Notice, notifying the industry about this, and 

also requested CSE to maintain their voluntary stop-sale, which has continued since 

the issuance of the February User Notice. When CSE has a solution, they will be 

allowed to return to production. Units in the field will need to be addressed either 

by a retrofit or replacement program. 

Question. Flow many breathing units are affected? 

Answer. There are approximately 80,000–90,000 CSE SCSRs in the field and a 

total of approximately 190,000 SCSRs from all manufactures in the field, according 

to records in the MSI IA SCSR database. 

Question. What is MSHA doing to notify miners? 

Answer. CSE issued the second User Notice the beginning of May. The MSHA 

Web site, www.dol.gov/MSHA, includes information on all User Notices and a training notice regarding the Manual Start of chemical SCSRs. All User Notices have 

been distributed to all underground coal mines. MSHA Inspectors are checking to 

see that miners have been notified at mines and have been trained in the manual 

start procedures. 

Question. How is MSHA ensuring that operators address the problem? 

Answer. MSHA and NIOSH jointly conducted conference calls with the key National Mining Association (NMA), Bituminous Coal Operators Association (BCOA), 

and United Mine Workers of America (UMWA) representatives to update the investigation. Inspectors have been instructed to check that miners have been informed 

about the CSE SCSR problem and that they have been trained in the manual start 

procedure. MSHA CMS&H and Technical Support have drafted one Procedure Instruction Letter (PIL) and two Program Information Bulletins (PIB). One PIB relates to the second User Notice distributed by CSE, disseminating the information 

across the industry. The second PIB clarifies PPL requirements for mine operator 

testing of SCSRs with a 1 percent sample, and reiterates procedures to follow when 

problems are discovered with any SCSR in the field. CSE is exploring retrofit options that potentially would have to be provided for all SR–100 SCSRs in the field. 

CSE has a second engineering company exploring the use of a CAT scan to determine the distribution of sealant along threaded connections. Weekly progress reports are being provided to NIOSH and MSHA. 

Question. What is the plan and timeline for reorganizing MSHA District 4 into 

two districts? 
83 

Answer. Recently, we provided information to the Congress that included a proposal for $1,048,000 to begin the reorganization and subsequent build-out of a new 

District office. MSHA has been working with the General Services Administration 

(GSA) to identify potential locations to house the new facility in the vicinity of the 

existing Pineville, West Virginia field office. If supplemental funding is provided, 

MSHA estimates the entire process of opening a new District office will take between 16–24 months, depending on our ability to find a suitable pre-existing structure that meets space requirements. Absent that, GSA would enter into a lease 

agreement for a build-to-suit facility. This would push the occupancy timeline of the 

District’s permanent home out to approximately 24 months. MSHA plans to hire between 16–18 personnel to staff the District Office. There will be no increase to the 

Coal activity’s PTE ceiling; these positions will be realigned from other Coal districts where mining activity has decreased. In order to be fully staffed and operational prior to a permanent building being ready for occupancy, MSHA will secure 

temporary space to house employees. 

Question. Assistant Secretary Main, please describe any irregularities that MSHA 

has found on the fan charts for the Upper Big Branch mine? 

Answer. The accident investigation into the Upper Big Branch mine disaster is 

still ongoing. Matters such as these and how they relate to other evidence in the 

investigation are being examined by the investigation. Once that is concluded, we 

will be able to report on the findings. 

Question. I request that you or Dr. Howard describe whether there are more advanced and tamper-proof technologies for mine fan record-keeping? 

Answer. The current 30 CFR 75.312 regulation requires the measurement and recording of the mine fan pressure and examination of the fan each day. In most 

cases, the fan pressure is measured by a mechanical recorder with a paper chart 

on it. Some mines utilize a computerized system using the mine’s Atmospheric Monitoring System and routing the information to a centralized facility. Computerized 

monitoring systems provide the opportunity for data to be electronically transmitted 

and stored. 

Question. How can we ensure that records are accurate, and that MSHA receives 

the accurate information in time to intervene promptly on behalf of miners? 

Answer. Fan charts have been used for years, but other methods could be utilized. 

A system that would download data at a secure data collection location may provide 

additional information. Expanding the use of mine-wide atmospheric monitoring 

that would constantly monitor and identify changes in air pressures and quality 

such as methane, carbon monoxide, and oxygen levels at strategic locations in the 

mine that could trigger alerts to miners would improve miners’ safety. 

Question. How can advanced technology and computerized records improve this 

process? 

Answer. Advanced technologies can improve mine safety in a number of ways. As 

noted, the use of mine-wide atmospheric monitoring systems can provide immediate 

information on problems that can lead to mine explosions. Technologies that monitor the mine atmosphere at strategic locations that can detect levels of methane, 

carbon monoxide, oxygen deficiencies, loss of ventilation pressures, reversal of air 

directions, and provide warning before they endanger miners can be implemented. 

These are sound preventative measures that can help protect miners. 

To help speed-up mine rescue efforts during an emergency, mine-wide atmospheric monitoring can be accomplished with a tube bundle system. In a tube bundle 

system, plastic sampling tubing is placed in strategic underground sampling locations, such as section return regulators and bleeder evaluation points, and is extended to a location on the surface of the mine. Sampling pumps located on the surface of the mine draw the air samples to monitoring and recording equipment. A 

similar method has long been used successfully by MSHA to sample mine 

atmospheres remotely after a mine lire or explosion. A tube bundle system has also 

been used extensively in Australian mines. 

LAKE LYNN EXPERIMENTAL LABORATORY

Question. Review the estimates for getting Lake Lynn reopened and to provide an 

updated estimate to the subcommittee. 

Answer. The estimated cost of repairs to the Lake Lynn Experimental Laboratory 

is $12 million pending availability of appropriations. The following provides an outline of the timeline and schedule of repairs for the Lake Lynn Experimental Laboratory based on the successful acquisition of property by December 30, 2010: 

—December 2010.—Acquisition of Lake Lynn facility is pending approval. 

—January 2011.—Design phase for construction and repairs begins assuming the 

Centers for Disease Control and Prevention acquires purchase of Lake Lynn. 
84 

—June 2011–2013.—Quick entry repairs completed to enable temporary access 

through existing primary access route, until construction of the two new entry 

portals is complete. When the new portals are operational, the temporary access 

route will be decommissioned because of the poor quality of the roof rock in the 

area of that route. Construction of new portals is complete, providing full access 

to the mine, pending availability of appropriations. 

QUESTIONS SUBMITTED TO JOHN HOWARD

QUESTIONS SUBMITTED BY SENATOR THAD COCHRAN

COAL DUST EXPLOSIBILITY METER (CDEM)

Question. The goal of the National Institute for Occupational Safety and Health’s 

(NIOSH) Office of Mine Safety and Health Research is the prevention and elimination of mining fatalities, injuries, and illnesses through research and safety interventions. 

NIOSH is currently pursuing commercialization of the CDEM, which is a portable 

device that will provide the mining industry with a means to assess accurately and 

in real time the hazard of coal mine dust explosibility. As it now stands, an inspector collects samples that are sent away and take 2 weeks to process. CDEM will 

not be commercially available until next year. 

NIOSH has also conducted research into the utility, practicality, survivability, 

and cost of refuge alternatives in an underground coal environment. State and Federal efforts resulted in the introduction of refuge chambers throughout the underground coal industry. However, alternatives to chambers such as an in-place shelter 

were left largely untouched and a range of chamber operational questions remain 

unknown. 

It my understanding that we only learned after the Upper Big Branch mine explosion that the mine had an impermissible coal and rock dust mixture shortly before 

the explosion. Could real-time information on the hazard have played a role in potentially preventing this explosion and future explosions? 

Answer. The ratio of coal and rock dust mixtures in underground coal mines provides insight into the explosibility hazard in a mine. Historically, samples of the 

dust mixture were collected and then sent to a laboratory for analysis, which required days or weeks for results to be obtained. NIOSH believes that reducing this 

analysis time would greatly improve the mining industry’s ability to avoid potential 

explosion hazards. Therefore, NIOSH conducted a research study to develop a device 

capable of evaluating the ratio of coal and rock dust mixtures and the explosibility 

hazard in real-time. NIOSH achieved its research goals by developing the CDEM, 

which provides the same information as historical methods but within minutes of 

collecting the samples. Thus, the CDEM allows mine operators to know immediately 

if they must add more rock dust to maintain an inert mixture of rock to coal dust 

to avoid an explosion hazard. Similar to the past development of the methanometer, 

which allowed mine operators real-time knowledge of methane levels, the CDEM is 

expected to reduce the risk of explosions by allowing operators to identify and mitigate explosion risks at significantly earlier time points. 

Question. Would additional Federal resources allow for the commercialization of 

the CDEM sooner than the next year? 

Answer. NIOSH recognizes the significant benefits that the CDEM would provide 

to the underground coal mining industry by allowing explosion hazards to be identified and mitigated at earlier time points. As such, NIOSH has used its allocated 

funds efficaciously to assist in the commercialization of this device. Therefore, any 

additional Federal resources would have minimal impact on the timeframe for when 

this device becomes available to the public. However, a significant barrier to the 

commercialization of this device still exists. At the May 20, 2010, Mine Safety hearing, Dr. Howard indicated that the primary barrier to commercialization is the lack 

of a regulatory driver, given the small market share that the United States underground coal mining industry represents to potential manufacturers. 

Question. What can be done to increase mineworker confidence in refuge chambers, and to address the issue that the value of this potentially lifesaving technology 

remains undetermined? 

Answer. NIOSH conducted a number of in-house and contract research efforts in 

response to the mandates in the MINER Act and for preparation of the report to 

Congress. Specific in-house studies addressed such issues as the moving of refuge 

chambers located on active sections, the economic aspects of refuge chambers and 

in-place shelters, explosion pressure requirements, location, food and water require-
85 

ments, interior space requirements, training needs, and simulated occupancy testing 

of the systems for providing breathable air. These data, coupled with feedback regarding refuge chambers already in use, have identified several critical gaps. These 

gaps, which remain a concern, involve the effectiveness of individual components of 

the technology and the ability of refuge chambers to function as advertised by the 

manufacturers. Therefore, NIOSH believes that the greatest impediment to increased mineworker confidence in refuge chambers relates to significant technology 

concerns rather than a perception issue within the industry. Until these functional 

issues are evaluated through a comprehensive research project, and the problems 

identified are addressed by the manufacturers, increased mineworker confidence 

may continue to be a concern. NIOSH is developing a research project to examine 

the major barriers to using refuge chambers and potential improvements to the 

technologies currently being used. The issues addressed may include, but will not 

be limited to, communications, heat and atmosphere management, scrubbing or 

purging of carbon monoxide, explosion resistance, movement and utilization, testing 

and approval processes, and training. 

QUESTIONS SUBMITTED BY SENATOR ROBERT C. BYRD

MINE SAFETY AND HEALTH ADMINISTRATION

Question. National Institute for Occupational Safety and Health (NIOSH) has 

studied the most severe mine explosions to identify ignition locations and sources. 

NIOSH linked many fatalities to nonpermissible electrical equipment located in intake air courses. What is MSHA doing to address this and other issues raised by 

NIOSH? 

Answer. NIOSH has informed Mine Safety and Health Administration (MSHA) 

that NIOSH is available to discuss the implications of the research referenced in 

this question. 

INVESTIGATION OF THE SR–100

Question. MSHA and NIOSH are investigating an activation problem with the 

SR–100, which is an emergency breathing device that has been recalled. What is 

the status of the joint investigation? How many breathing units are affected? What 

is MSHA doing to notify miners? How is MSHA ensuring that operators address the 

problem? 

Answer. NIOSH has played an active role in the investigation of the activation 

problem with the SR–100 in coordination with MSHA and the manufacturer. 

NIOSH, MSHA, and the manufacturer of the product in question (CSE Corporation) 

have met on several occasions to discuss the activation problem. At this time, the 

manufacturer believes that it has identified the source of the problem as being the 

sealant on the threads of the connection between the valve and the cylinder body 

on the start-up oxygen cylinders. Meanwhile, the manufacturer has not been able 

to identify a subset of its units with this particular problem, nor has the manufacturer identified the root cause of the problem in the manufacturing or QA process. 

The manufacture has stopped production and sale until the problem is resolved. 

NIOSH has issued several notices for users, including miners, on this problem. The 

most recent of these is the Respirator User Notice on the CSE SR–100 Self-Contained Self-Rescuer activation problem issued on October 20, 2010. In this notice, 

NIOSH and MSHA inform users of the actions they are taking to randomly sample 

and test SR–100 respirators from mines to determine the prevalence of the problem 

in field-deployed units. Once this investigation is complete, the agencies will decide 

what further actions may be necessary. More recently, NIOSH has identified an additional problem with opening some of the CSE SR–100 units, and NIOSH and 

MSHA are investigating this problem. NIOSH is currently developing training materials for mine workers that will explain how to determine if their SR–100 unit is 

functioning, and what they should do in the event that their unit fails to provide 

oxygen. 

UBB MINE

Question. Please describe any irregularities that MSHA has found on the fan 

charts for the Upper Big Branch mine? I request that you or Dr. Howard describe 

whether there are more advanced and tamper-proof technologies for mine fan 

record-keeping? How can we ensure that records are accurate, and that MSHA receives the accurate information in time to intervene promptly on behalf of miners? 

How can advanced technology and computerized records improve this process? 
86 

Answer. NIOSH believes that mine-wide atmospheric monitoring is an advanced 

technology that may improve safety in that the information provided may be used 

in real-time to mitigate explosion hazards. These technologies may be used to identify changes in methane, ventilation parameters such as pressure and velocity, carbon monoxide levels, etc. throughout the mine. This data has great potential for detection of hazards that may otherwise go undetected. 

LETTER FROM PATTON BOGGS LLP 

Washington, DC, November 12, 2010. 

Hon. TOM HARKIN, 

Chairman, Subcommittee on Labor, Health and Human Services, Education, and 

Related Agencies, Committee on Appropriations, Room 131, Dirksen Senate Office Building, Washington, D.C. 20510–6025. 

Hon. THAD COCHRAN, 

Ranking Member, Subcommittee on Labor, Health and Human Services, Education, 

and Related Agencies, Committee on Appropriations, Room 131, Dirksen Senate 

Office Building, Washington, D.C. 20510–6025. 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER COCHRAN: I write on behalf of my 

client, Massey Energy Company (‘‘Massey’’ or the ‘‘Company’’), in response to certain 

questions posed by Senator Cochran and the late Senator Robert Byrd of West Virginia. Provided below is my best effort, in consultation with Massey, to answer those 

questions as thoroughly as possible in the hopes that it will be of assistance to your 

committee in its important work exploring the issue of mine safety in this country. 

If after you have had an opportunity to review our responses below, there is any 

further information that you need, we will make best efforts to assist you. 

For the sake of clarity and convenience, we have set out the questions and answers together. 

Senator Byrd Question Number One. You said that you have strongly resolved to 

do everything possible to prevent this type of incident from happening again, and 

we want to take you at your word. Nevertheless, after its 2006 mine disaster, the 

Aracoma Alma #1 Mine still, in 2007, received 100 withdrawal orders for unwarrantable failures to comply with the Mine Act, and 11 withdrawal orders for failures 

to abate cited violations in a timely manner. Additionally, you currently have several other underground mines in or near West Virginia that are already on track 

this year to have as many withdrawal orders as the Upper Big Branch Mine had 

last year. What specific actions will you take to reverse these trends and prevent 

further injuries, illnesses, or deaths? In this regard, I am referring to mines receiving repeated 104(d)(2) withdrawal orders so far this year, in the following quantities: 

Spartan Mining—Road Fork #51—22 orders 

Freedom Energy Mining—Mine #1—32 orders 

Inman Energy—Randolph Mine—11 orders 

Massey’s Response: 

The tragedy on April 5, 2010 at Performance Coal Company’s Upper Big Branch 

(‘‘UBB’’) mine deeply affected everyone at Massey; obviously, the greatest and most 

tragic impact was felt by the twenty-nine families who lost loved ones. In the face 

of this disaster, Massey has worked tirelessly to determine the cause of this accident 

and has redoubled its efforts to ensure to the extent humanly possible that nothing 

like it ever happens again. Apart from joining the Mine Safety and Health Administration (‘‘MSHA’’) and the West Virginia Office of Miners’ Health, Safety and Training (‘‘WVOMHST’’) in the current underground investigation of the UBB mine, 

Massey has reevaluated its safety practices and implemented an even more demanding set of safety measures in all of its mines. Provided below is a summary of these 

changes. 

Since Senator Byrd’s question mentions the 2006 Aracoma accident, it is important to mention briefly the numerous safety measures instituted by Massey immediately afterward. Because that incident involved an underground fire, Massey specifically improved its methods of fire prevention and control; for instance, Massey 

retrained dispatchers and atmospheric monitoring system operators, including the 

dispatcher on duty at the time of the Aracoma fire. The mine’s dispatchers are now 

trained in safe haulage related to ventilation systems, firefighting, and emergency 

evacuation. Massey also installed at Aracoma state of the art sprinkler fire-suppression systems that far exceed state and Federal requirements. In addition, Aracoma 
87 

now has: (i) new fire hoses with permanent water connection and improved access; 

(ii) thermal imaging devices; (iii) updated training of its mine rescue teams; (iv) a 

mobile firefighting trailer loaded with specialized firefighting equipment; (v) a mobile smoke room training unit to train miners for difficult mine fire evacuations; and 

(vi) enhanced quality assurance testing of all self-contained self rescue (‘‘SCSR’’) devices. In 2007, Massey even unveiled an innovation in the field of mine safety: a 

self-contained foam fire-fighting mine car. The 2007 withdrawal orders referenced 

in Senator Byrd’s question were more a reflection of MSHA’s heightened scrutiny 

of Aracoma in the wake of that accident than of conditions at the mine, and the 

validity of those orders is currently in contest. Indeed, in the same year that MSHA 

issued those withdrawal orders, Aracoma ranked among the very safest mines in 

the nation with a remarkable 0.00 nonfatal days lost (‘‘NFDL’’) incidence rate in 

2007. Honoring that exceptional accomplishment, on May 9, 2008, the Joseph A. 

Holmes Safety Association presented Aracoma’s Alma and Hernshaw mines with 

prestigious national Pacesetter Awards for outstanding safety achievement. 

Aracoma also earned Massey Energy Company’s 2007 Bradbury Safety Award, an 

annual award recognizing Massey’s safest mining operation. This stark contrast between the withdrawal orders and contemporaneous safety awards is powerful proof 

that MSHA’s subjective enforcement actions do not always accurately reflect the 

safety condition of a mine. 

With respect to UBB, Massey already had instituted a number of safety measures 

before the accident. As a result of an increase in MSHA citations and orders at 

mines like UBB and Spartan Mining’s Road Fork #51 mine, Massey created the 

Hazard Elimination Committee in 2009. The committee is composed of experts who 

review all citations, identify related problems, order all necessary corrective measures, and then work to prevent any similar lapses at either the mine in question 

or any other Massey mine. More globally, the Hazard Elimination Committee carefully reviews mines with a history of withdrawal orders and institutes corrective actions designed to ensure the safety of Massey’s employees (whom Massey refers to 

as ‘‘members’’). Since the UBB accident, Massey separated and expanded the committee into more specialized units and also instituted Hazard Elimination Committees at the resource group level, which allows for real time solutions. The number 

of people on the committee also has grown from 20 to 50, ensuring that the Hazard 

Elimination Committee has the resources to fulfill its mandate. Going forward, 

Massey sees these committees as critical to creating a unified response to any systemic issues. 

Besides the Hazard Elimination Committees, Massey also has instituted a more 

robust internal audit program that closely mirrors MSHA’s level of oversight. The 

Company now has multiple full-time mine rescue/audit teams to improve compliance 

through comprehensive auditing. Each team includes a specialist assigned to a specific area of focus, including ventilation, section operations, electrical operations, 

conveyor systems (belts), mapping, and administrative compliance. The audits entail, among other things, an inspection of track haulage ways, escapeways, life lines, 

section ventilation, accumulations of combustible materials, and roof support. The 

audit culminates in a report—supported with photographic documentation—that 

lists all necessary corrective measures and provides a deadline for correction of the 

problem, not unlike that which MSHA or a state agency might require. These working groups are founded upon the principle, which Massey fully embraces, that the 

Company, and not its regulators, bear primary responsibility for ensuring a safe and 

lawful working environment. 

The impact of the Hazard Elimination Committees and the new audit procedures 

already has been felt. In fact, each of the three mines mentioned in Senator Byrd’s 

question have received significant attention from the Hazard Elimination Committee in 2010; for example, Freedom Energy’s Mine #1 has been the subject of two 

recent comprehensive mine audits, which resulted in subsequent remedial measures. Provided below, is a sample of the safety-related changes that have resulted 

from Massey’s new programs: 

—In response to violations issued for the installation of man doors without proper 

signs in each adjacent entry, Massey now requires that doors or stoppings be 

shipped to the mine for installation with all necessary components bundled together, including the required signage. This requirement should eliminate the 

potential for installation of an item before other necessary components have 

been shipped by the supplier, or received by Massey. 

—Massey routinely distributes company-wide information regarding certain violation trends. Massey frequently sends out notes to the resource groups, with the 

number of violations issued for repeated hazards, such as unsealed stoppings, 

insufficient air flow at the end of line curtains, water over the ball of the track 
88 

1We were instructed by counsel for the committee to disregard the second question posed by 

Senator Byrd. 

rail, or the accumulation of combustible materials. These communications 

sharpen members’ focus on specific problem areas. 

—Each week, Massey develops a new ventilation training quiz and sends it to 

every underground foreman or examiner. These quizzes are used to train and 

instruct members on all applicable regulations. The 31 tests issued to date have 

included working mine map problems, multiple choice quizzes and word puzzles 

that require members to familiarize themselves with Massey’s stringent ‘‘S–1 

P–2’’ (i.e. safety first, production second) guidelines. 

—The Hazard Elimination Committee terminated a previous practice in which 

mine sites would purchase 16 foot fly boards. These boards, from which ventilation check curtains are hung, had been used throughout the company. During 

an audit, it was apparent that the 16 foot fly boards inadequately facilitated 

back up curtain coverage across the 20 foot wide entries. Massey now requires 

the installation of two ten-foot boards. In combination with the Company’s required 20,000 cfm of air flow at the last open crosscut (11,000 cfm more than 

required by law), Massey has reduced the number of air flow violations. 

Because the UBB mine is currently subject to an MSHA closure order that prohibits Massey from operating underground, it is currently impossible to institute the 

above safety measures like Massey successfully implemented after the Aracoma accident. Massey nevertheless has recently implemented a number of safety measures 

at other mines. Specifically, Massey has amended its safety protocols to include the 

following: 

—A minimum air flow of 20,000 cfm is required at the last open break on all sections. 

—Freshwater and dewatering lines in belt entries must be hung from roofs to 

avoid damage. 

—Section roof bolters shall be equipped with a Bantam-type rockduster and roof 

bolt operators shall rockdust each cut upon completion of bolting. 

—When stoppings are built and completed, the individual who builds the stopping 

will note its integrity by initialing and dating the stopping. 

—Escapeways shall be traveled twice per week (even though once per week is the 

legal requirement). The examiner will carry a device for scaling roof and ribs 

and lifeline accessories, such as spheres, cones, hangers, reflectors, lifeline 

splices, and mandoor and escapeway signs. 

—Each fireboss is required to leave a colored ribbon after his examination; this 

ribbon is replaced with a different color by the next fireboss, confirming that 

checks are made. 

—Miners will be provided with a new style of metacarpal glove that is more comfortable and that provides superior hand and finger protection. Metatarsal 

gloves were created by Massey years ago and have been enhanced several times. 

—Massey produced video training tapes covering the following subjects: (i) electrical hazards/lock-out surface and underground; (ii) surface haulage safety; (iii) 

roofbolter dust collection system maintenance; and (iv) continuous miner, roof 

bolter, and general underground hazard training. 

—Mines will now perform: (i) internal rock dust sampling for incombustible content; (ii) systematic gas chromatograph analysis of internal ventilation air 

course gases, which is more accurate and comprehensive than that provided by 

the industry standard handheld units; (iii) real time testing of member exposure 

to respirable dust through the operation of personal dust monitors (nearly 30 

units). Massey will use the dust monitors proactively with a time study to determine dust sources and to train members on best practices. 

To underscore the above commitment to safety, Massey took the extraordinary 

step of idling all of its mines on October 29, 2010 for a company-wide safety retraining initiative. 

Massey used this unique opportunity to review and tighten safety procedures at 

each of its mines. Massey’s Chairman and CEO, Don Blankenship, traveled to three 

mines during this stand down, including Freedom Energy Mining’s Mine #1, and 

helped to educate members on the need to follow safety protocols at each mine. Undertaking such broad-scale training with the support of the entire company is a testament to Massey’s commitment to safety and a signal to its members that S–1, 

safety first, is the top priority. 

Senator Byrd Question Number Three.1 Does it not undermine your commitment 

to safety as ‘‘job 1’’ when Massey offers bonus packages that are based 75 percent 

on productivity (i.e. number of feet per shift, number of tons per man-hour, reduction of cash costs per ton) and only 25 percent on safe performance? It is my under-
89 

standing that Massey also has a company policy that enables it to offer incentive 

awards to any of its employees. Have any of your employees received a bonus or 

award for achieving a given performance goal related to productivity, without also 

having achieved a performance goal on safety? Do you offer your coal miners or 

other employees awards, bonuses, or other supplemental compensation, based on 

their productivity? 

Response: 

Massey has a number of different bonus structures for its employees, each of 

which incorporates a safety component and none of which undermine the Company’s 

commitment to safety. The bonus framework incorporates safety through clear, cognizable benchmarks that require low nonfatal days lost and lost time accidents. 

These incentives apply to all members, from a company president to an engineer 

to a roof bolt operator. For supervisors, the safety bonus is typically tied to the overall safety of the members under their care. Other members are rewarded based 

upon a formula that accounts for their own safety, their section’s safety, and the 

whole mine’s safety, thereby encouraging safety both individually and collectively. 

The Company understands that it is both improper and counterproductive to sacrifice safety in an attempt to increase coal production. Indeed, we absolutely reject 

the premise that the goals of safety and productivity compete with one another. The 

maxim ‘‘a safe mine is a productive mine’’ is a common refrain among Massey members or, put differently, a successful 51 Program is essential to an effective P–2 Program. Consequently, Massey standardizes its mining practices and provides detailed 

process guidelines for routine mining procedures. Massey recognized long ago that 

process management is essential to mine safety and that accidents often result from 

process exceptions. The goal is to perform every job correctly the first time and 

every time thereafter. Accordingly, Massey’s ‘‘S–1 P2’’ programs are grounded upon 

the principle that mines are more productive and more profitable when management follows a documented regimen of safe mining practices. So while it is true, as 

mentioned in Senator Byrd’s question, that 75 percent of some employees’ bonus 

structure might be tied to cash costs per foot, production feet per shift, and linear 

feet per man hour, safety plays a critical role in determining if the bonus is met. 

As a result, members cannot meet their production goals and maximize their bonus 

by ignoring safety. 

Apart from the above bonus structure, Massey’s safety compliance and ethics program is enhanced through its pioneering and award-winning ‘‘Raymond’’ safety incentive program. Under the Raymond program, points are awarded to individuals, 

working teams, and specific mines for safe and ethical conduct, and those points 

may then be redeemed from a prize catalog that includes sporting goods, clothing, 

tools, electronics, toys, and other items. All underground members from the superintendent level and below are eligible to participate in the program. The Raymond 

incentive program has been recognized nationally for its creativity and effectiveness 

in promoting a culture of safety and compliance, winning the 2006 and 2007 Promotional Products Association International’s Golden Pyramid Award for Employee 

Incentives, and the 2005 Incentive Marketing Association’s Circle of Excellence 

award for Most Outstanding Incentive Program in the nation. 

Whether applied to the newest member or the most experienced president, 

Massey’s bonus structures explicitly emphasize safety. Although Massey is confident 

that the current system does not undermine the Company’s commitment to safety, 

the bonus criteria are not static, but rather are subject to change from year to year 

as Massey continually reevaluates its programs to ensure that they reflect the principles of safety first and performance second. 

Senator Byrd Question Number Four. You testified that the Upper Big Branch 

Mine was formerly operated by Peabody Energy. According to the Energy Information Administration, the productivity of Central Appalachian coal mines has declined 33 percent over the past decade. Major coal-mining companies (such as Peabody) have increasingly sold off their Central Appalachian mines. This is perhaps 

due to perceptions that increased risks and related costs outweigh diminished production values. Meanwhile, Massey has acquired many cast-off properties and coal 

leases, and roughly tripled the amount of reserves it controls during the past twenty 

years. For instance, it is my understanding that while other coal companies have 

gone bankrupt or left the region, Massey has acquired, rehabilitated, and resumed 

production at older mines, including nonproducing property in which blocks of coal 

had been left un-mined by the previous operator. You stated that your goal is to 

engineer the risks out of mining in Central Appalachia, but you also repeatedly acknowledged the difficult underground geologic conditions and risk factors of many 

mines in Central Appalachia today. The Upper Big Branch Mine Disaster presents 

the question as to whether Massey can sufficiently engineer the safety risks out of 

the difficult mining conditions in Central Appalachia. How do you respond to that 
90 

question? Considering the nature of your acquisitions and operations, and your remarks about management of risks, and in light of the UBB tragedy, what process 

will Massey use to re-evaluate its previous assumptions and its abilities to engineer 

safety into its Central Appalachian underground coal mines? 

Massey’s Response: 

Mining coal is an inherently dangerous business and has been so since coal was 

first discovered in West Virginia by John Peter Salley in 1742. Digging through rock 

thousands of feet underground in dynamic conditions with large elaborate machinery entails a certain amount of risk. As recently as 1968, these risks led to the 

deaths of over 150 West Virginia coal miners and resulted in a staggering number 

of non-fatal accidents. Needless to say, the risks associated with coal mining have 

decreased significantly as technology and training have improved over time. Although Massey is acutely aware of the perils associated with mining, it is nevertheless optimistic about the future of safe mining in Central Appalachia in light of the 

dramatic technological progress that has occurred over the last twenty years. Indeed, Massey has been at the forefront of the research and technological innovation 

that has advanced the cause of safety; set forth below are some examples of 

Massey’s contribution: 

—Proximity devices for underground continuous miners: These devices stop a continuous miner when a member comes dangerously close to the equipment. The 

Company believes this eventually will be adopted into law. Massey helped conceive the idea and is also pursuing the use of proximity devices on other mobile 

equipment. 

—First-aid sled for underground operations: These sleds are equipped with a complete set of first aid supplies. They can be moved underground with mining operations easily so that they are readily available in an emergency. 

—Protective covers for highwall miners: Due to the proximity of the highwall 

miner machine to highwalls, Massey installed these covers to protect miners 

from unexpected highwall failures. 

—Canopies and NASCAR netting for underground mantrips: Although not required by law, Massey equipped its mantrips with canopies and netting to protect its miners from falling rock while traveling underground. 

—Underground forklifts for material handling: These specially adapted forklifts 

assist miners in the movement of supplies underground. Combined with the required vendor palletizing of bulk supplies, the forklifts have greatly reduced 

back strains and other injuries. 

—Automated Temporary Roof Support (‘‘ATRS’’) Flappers: Massey developed retractable folding extensions for the Automated Temporary Roof Support in order 

to expand the supported roof area during the roof bolting process. The flappers 

reduce the likelihood that loose rock or coal will roll onto an operator’s feet or 

legs, thus providing an operator with a larger ‘‘safe’’ area to perform. 

—Thermal Imaging: Massey utilizes thermal imaging to detect defective circuit 

breakers or connections before they can start fires, explosions or otherwise 

harm Massey members. 

—Underground maintenance vehicles: Massey developed these all-in-one units, 

which include a crane, to assist with maintenance and repairs to underground 

equipment. 

—Protective Clothing: Beginning in 1993, Massey required the use of reflective 

clothing and metatarsal work boots for all mining operations. The industry and 

much of the world subsequently adopted both of these safety advances. 

—Vehicle safety: Out of a concern for the safety of those working around mining 

vehicles, Massey implemented a seat belt policy for all mining equipment, required the use of strobe lights on underground vehicles, and required the use 

of reflective tape on all surface vehicles. 

—Foam fire-fighting car: As mentioned in the answer to Senator Byrd’s first question, Massey developed a self-contained foam firefighting car as one of the many 

safety-related responses to the Aracoma accident in 2006. 

—Submarine kits: Dozers working near stockpiles are equipped with ‘‘submarine 

kits’’ that protect dozer operators if the dozer slips into voids in the stockpile. 

This device has been adopted throughout the industry and has saved lives. 

—Cameras on large equipment: Large surface mining equipment has been 

equipped with cameras that address driver blind spots, keeping miners in 

smaller surface equipment safe. 

Although Massey clearly understands its obligation to provide a safe working environment for its members in Central Appalachia, MSHA likewise has a duty to ensure underground safety. It is for this reason that Massey continues to be perplexed 

by some Federal regulatory actions that strike the Company as insufficient or, in 

some extreme instances, just plain wrong. One such example is MSHA’s position 
91 

with respect to scrubbers, which are essentially dust collectors that help to minimize 

coal dust that threatens miners’ lungs and that could potentially precipitate an explosion. Scrubbers are akin to a vacuum cleaner, drawing in dirty air created during 

the continuous mining process, passing that air through a filter, and eventually releasing the filtered air back into the mine. This is essential technology that has 

been widely used since the 1980s, making mines objectively safer over the last three 

decades. In fact, one study by the National Institute of Occupational Safety and 

Health indicated that turning off scrubbers could increase by as much as 12 times 

the level of respirable coal dust. In the face of this scientific data and despite industry-wide support, however, MSHA demanded that Massey and other Central Appalachian mines in District 4, including UBB, idle their scrubbers. As a result, almost 

half of Massey’s continuous mining equipment has been forced to run without using 

the technology best adapted to remove harmful coal dust from the air. Repeated efforts by Massey to open a dialogue with MSHA on this subject have been met with 

intransigence. 

This issue is particularly sensitive to Massey because the company believes that 

prohibiting scrubbers at UBB exacerbated MSHA’s complicated ventilation plan for 

the mine. A properly ventilated mine requires the careful synchronization of various 

underground mechanisms; altering one aspect of a mine improperly can disrupt the 

environment in potentially harmful ways. As a result of MSHA’s order to turn off 

scrubbers, Massey was compelled to alter UBB’s ventilation system, further complicating MSHA’s already unnecessarily complex ventilation plan for the mine and increasing respirable coal dust at UBB. 

Despite the above challenges, Massey continues to remain optimistic about the future of coal mining in Central Appalachia. Since 1742, there has been a steady 

march towards safer mines in West Virginia. Sometimes progress is frustratingly 

slow, yet the advance over time is undeniable. The Company, therefore, remains 

committed to Central Appalachia in the firm belief that future technological advancements will invariably lead to safer mines. 

Background to Senator Cochran’s Questions. A recent preliminary report to President Obama on the mine disaster found that the Upper Big Branch mine experienced a significant spike in safety violations in 2009. The Mine Safety and Health 

Administration (MSHA) issued 515 citations and orders at the mine in 2009 and another 124 (as of the time of the report) in 2010. MSHA issued fines for these violations of nearly $1.1 million, though most of the fines are being contested by Massey. 

The citations MSHA has issued at Upper Big Branch have not only been more numerous than average, they have also been more serious. Over 39 percent of citations 

issued at Upper Big Branch in 2009 were for ‘‘significant and substantial’’ (S &S) 

violations. In what is perhaps the most troubling statistic, in 2009, MSHA issued 

48 withdrawal orders at the Upper Big Branch Mine for repeated ‘significant and 

substantial’’ violations that the mine operator either knew, or should have known, 

constituted a hazard. The mine’s rate for these kinds of violations is nearly 19 times 

the national rate. 

Senator Cochran Question Number One. Are you aware that a recent preliminary 

report submitted to President Obama by the Mine Safety and Health Administration found that Massey mine’s rate for repeated serious violations was 19 times 

higher than the nation average? 

Massey’s Response: 

Massey is aware of the preliminary report that apparently was hastily prepared 

and provided to President Obama on April 16, 2010. Although it is true that UBB 

experienced an increase in the number of withdrawal orders under Section 104(d) 

of the Mine Act (‘‘D orders’’) in 2009, the report does not fairly account for the circumstances contributing to these orders, nor does MSHA fairly acknowledge the 

sharp decrease in citations in late 2009 and 2010, after Massey redoubled its efforts 

at UBB. Provided below is the factual background that places these violations in 

the proper context. 

The increase in overall citations and orders at UBB in 2009 is largely a product 

of increased government oversight of the mine as well as a higher level of coal production. It is well settled that there is a direct correlation between MSHA inspection 

hours, the volume of production and the number of citations that a mine receives. 

As MSHA recognized in its preliminary report: ‘‘In 2007, MSHA spent 135 days inspecting the mine. By 2009 inspectors were at the mine 180 days.’’ This 33 percent 

spike is the equivalent of an extra month and a half at the mine. At the same time, 

the longwall returned to UBB from Logan’s Fork, resulting in extra production and 

the development of additional sections for the next longwall panel. The confluence 

of more inspectors, longer and more frequent inspections, and increased production 

was, therefore, likely to result in additional citations. 
92 

2The data with respect to orders shows: (i) 55 ‘‘D orders’’ were written from 2009 through 

March 31, 2010; (ii) 34 of 55 ‘‘D orders’’ (62 percent) were issued under 30 § C.F.R. 575.300, 

which is generally the ventilation section of the law; (iii) 17 of those 34 were for ’true’ ventilation issues; and (iv) 9 of those 17 orders were direct results of the unfamiliar and complex ventilation scheme. The data with regard to the violations shows that 220 total violations were 

issued under 30 § C.F.R. 575.300; of those violations, 100 (45 percent) were for ‘true’ ventilation 

issues; and 24 of those 100 were due to the MSHA-mandated ventilation plans. 

Apart from increased production and inspection, the ill-conceived ventilation plan 

changes imposed by MSHA also contributed to the increased number of violations 

and orders. These arose not because the Company refused to comply with the new 

standards, but because it was difficult to comply with the new complex ventilation 

scheme, which complicated the routing of the returns, prevented the use of belt air 

in the face, required the maintenance of stoppings inby the longwall, and wasted 

intake air on the longwall tailgate. In fact, a review indicates that 53 percent of the 

‘‘D orders’’ for ventilation and 24 percent of ventilation violations received at UBB 

in 2009 and 2010 were caused directly from the complex ventilation scheme mandated by MSHA.2

Despite these clearly identifiable precipitating factors, Massey was still concerned 

about the number of violations and sought to reduce them. The Company responded 

by installing two full-time safety directors at UBB in late September 2009. The additional safety presence, along with Massey’s Hazard Elimination program, dramatically reduced the pace of citations issued at UBB. Indeed, although there were 47 

‘‘D orders’’ issued at UBB between April and mid-October 2009, MSHA wrote only 

seven from mid-October 2009 to April 2010, thus demonstrating the substantial 

progress made by the company during this period of time. 

In evaluating the above circumstances it is also important to note why the Company contested many of the citations and orders issued in 2009 and 2010. Massey 

believes in good faith that these violations and orders, in whole or in part, lacked 

validity and/or failed to account for mitigating circumstances. Indeed, many of those 

referenced in the report are not final orders and will not become final until the review and adjudication process is complete. Based on past experience, we expect that 

many of these violations will be completely vacated during the Mine Safety and 

Health Review Commission process; for others, the severity of the offense will be 

reduced appropriately as mitigating circumstances are explained and considered by 

neutral factfinders. 

We hasten to add that while there are mitigating circumstances that explain the 

elevated enforcements at UBB, the Company cannot, and will not, simply ignore ‘‘D 

Orders’’ or become complacent as to the potential seriousness of a pattern of increased violations. Accordingly, and as described above, Massey established its Hazard Elimination Program at UBB (and throughout the Company) before the UBB 

accident to reduce both hazards and violations. The efficacy of the committee on 

UBB is evident from the precipitous drop in ‘‘D Orders’’ during the course of 2009 

and into 2010. Massey believes that these measures as well as the others mentioned 

previously will result in a further decrease in the number of orders and citations 

company wide. 

Senator Cochran Question Number Two. Given this high rate of serious violations, 

can you please tell us what percentage the Upper Big Branch mine contested of its 

‘significant and substantial’’ citations serious violation citations for 2007, 2008, 

2009, and 2010? 

Massey’s Response: 

Massey does not keep statistics reflecting the number of Significant and Substantial (S&S) violations received at UBB that were contested through the Mine Safety 

and Health Review Commission process. The chart below identifies the percentage 

of violations that were S&S at UBB for the years 2006, 2007, 2008 and 2009. 

Year S&S violations/ 

UBB 

District 4 

average National average 

2006 ........................................................................................................... 47.9 40.7 38.2 

2007 ........................................................................................................... 36.7 33.3 36.0 

2008 ........................................................................................................... 42.1 36.1 31.9 

2009 ........................................................................................................... 39.7 38.7 33.6 

As you can see, the rate at UBB was slightly greater than the District 4 and national averages; this is easily explained, however, by UBB’s age, size, amount of producing sections, and number of employees, all of which are also proportionately 

higher than the national average. 
93 

It is important to note that a statistic that quantifies the number of S&S violations contested would be rudimentary because such violations typically involve a 

higher fine than most. Industry-wide, the percentage of violations contested quantified by the amount of money at stake is significantly higher than the simple percentage of violations contested overall. According to statistics available on MSHA’s 

website (www.msha.gov), the national average of all violations contested in 2009 

was 27.1 percent, but the percentage of penalty dollars contested was 66.6 percent. 

Plainly, there is a direct correlation between the amount of a fine and the likelihood 

that it will be contested. 

Furthermore, contesting an S&S violation does not necessarily mean that a mine 

operator challenges the fact that it was significant and substantial. There are a 

number of different factual issues that an operator may contest, all of which are 

highly subjective and directly affect the amount of the fine. See 30 § C.F.R. 

5100.3(e). For example, the number of people potentially affected by the hazard is 

a frequent point of contention between mine operators and MSHA. As part of the 

penalty calculations, a hazard that MSHA believes would affect 10 miners increases 

the penalty points by 18, while a hazard that affects only one miner (though still 

one miner too many) raises the penalty by one point. Id. This seventeen point differential has the potential to raise a single fine by over $45,000. See 30 § C.F.R. 

5100.3(g). 

Other factors that go to the ‘‘gravity’’ of the offense and that are frequently litigated include the degree of negligence, whether the hazard was potentially fatal, 

and the likelihood that an injury or illness would occur. With regard to the likelihood of an accident occurring, by determining that an injury was ‘‘highly likely’’ to 

occur as opposed to ‘‘reasonably likely,’’ the penalty points are increased by ten. Id. 

Above all, it is important to remember that statistics show that 40 percent of all 

appealed MSHA safety violations are later determined to be excessive or flatly 

wrong. Indeed, MSHA’s initial violations are now routinely inflated as a position of 

advocacy. Consequently, it would be unfair to draw any negative inferences from 

Massey’s decision to challenge MSHA’s issuance of these highly subjective citations 

and orders. To the contrary, the remarkably high frequency of fine reductions or 

outright dismissals through the settlement and adjudication process demonstrate 

that these appeals are neither frivolous, taken for the purpose of delay, nor intended 

to overwhelm the appellate process. 

Senator Cochran Question Number Three. Did the Upper Big Branch mine contest 

large numbers of ‘‘significant and substantial’’ violations to avoid ‘‘potential pattern 

of violation’’ status since the Mine Safety and Health Administration uses only final 

orders to establish a pattern of violations? 

Massey’s Response: 

In each instance, many factors—many of these the product of legal analysis and 

advice—inform the decision whether to appeal a particular citation. To the extent 

that this question seeks information that asks the Company to forfeit both the attorney-client privilege and the protections of the work product doctrine, we cannot respond. That being said, Massey challenges citations solely on their merits (or lack 

of merit). It does not challenge S&S citations simply to prevent its mines from being 

placed into ‘‘potential pattern of violation’’ status. As described in more detail above, 

there are myriad reasons for contesting an S&S violation, not the least of which is 

that it is an inherently subjective process. The results of the adjudicative and settlement process speak for themselves and forcefully refute the suggestion that appeals 

are taken for the purpose of delay or to avoid a ‘‘pattern of violations’’: Almost half 

of all citations are vacated or reduced during the Mine Safety and Health Review 

Commission process. 

It is also important to emphasize that Massey, like all mine operators, must abate 

every S&S violation, regardless of whether the Company plans to mount a challenge. A notice of contest, therefore, never results in the continuance of a potentially 

unsafe practice. By the time a contest is resolved, often more than a year from the 

issuance of the citation, the allegedly hazardous condition has been fixed and all 

that is in dispute is the validity of the violation and the severity of the fine. Simply 

put, Massey never exposes its members to any harm by contesting these violations. 

We reiterate that Massey is happy to assist your committee in its inquiry into the 

tragedy at UBB and mine safety in general. Massey believes that the committee’s 

full engagement will lead to a greater appreciation of the unique challenges faced 

by the coal industry and, we hope, lead to a safer environment in which to harvest 
94 

coal, which presently accounts for 45 percent of the country’s energy. If you have 

any further questions please do not hesitate to contact me. 

Sincerely, 

ROBERT D. LUSKIN. 

CONCLUSION OF HEARING

Senator HARKIN. The subcommittee is recessed. 

[Whereupon, at 4:50 p.m., Thursday, May 20, the hearing was 

concluded, and the subcommittee was recessed, to reconvene subject to the call of the Chair.] 

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