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[Senate Hearing 108-156]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-156

    PROPOSED MINE SAFETY AND HEALTH ADMINISTRATION RULE ON COAL DUST

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

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            SPECIAL HEARING

                     JULY 31, 2003--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations

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

                                 ______

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                            WASHINGTON : 2003
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                      COMMITTEE ON APPROPRIATIONS

                     TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi            ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania          DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico         ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri        PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky            TOM HARKIN, Iowa
CONRAD BURNS, Montana                BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama           HARRY REID, Nevada
JUDD GREGG, New Hampshire            HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah              PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho                   DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas          RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio                    TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas                MARY L. LANDRIEU, Louisiana
                    James W. Morhard, Staff Director
                 Lisa Sutherland, Deputy Staff Director
              Terrence E. Sauvain, Minority Staff Director
                                 ------                                

 Subcommittee on Departments of Labor, Health and Human Services, and 
                    Education, and Related Agencies

                 ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi            TOM HARKIN, Iowa
JUDD GREGG, New Hampshire            ERNEST F. HOLLINGS, South Carolina
LARRY CRAIG, Idaho                   DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          HARRY REID, Nevada
TED STEVENS, Alaska                  HERB KOHL, Wisconsin
MIKE DeWINE, Ohio                    PATTY MURRAY, Washington
RICHARD C. SHELBY, Alabama           MARY L. LANDRIEU, Louisiana
                           Professional Staff
                            Bettilou Taylor
                              Jim Sourwine
                              Mark Laisch
                         Sudip Shrikant Parikh
                             Candice Rogers
                        Ellen Murray (Minority)
                         Erik Fatemi (Minority)
                      Adrienne Hallett (Minority)

                         Administrative Support
                             Carole Geagley

                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening statement of Senator Arlen Specter.......................     1
Statement of David D. Lauriski, Assistant Secretary of Labor for 
  Mine Safety and Health, Mine Safety and Health Administration, 
  Department of La- bor..........................................     1
    Prepared statement...........................................     3
Statement of Joseph A. Main, administrator, Department of Health 
  and Safety, United Mine Workers of America.....................     5
    Prepared statement...........................................     7
Statement of David A. Beerbower, vice president for safety, 
  Peabody Energy Corporation.....................................    11
    Prepared statement...........................................    12
Questions submitted by Senator Robert C. Byrd....................    23

 
    PROPOSED MINE SAFETY AND HEALTH ADMINISTRATION RULE ON COAL DUST

                              ----------                              

                        THURSDAY, JULY 31, 2003

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 2:17 p.m., in room SD-192, Dirksen 
Senate Office Building, Hon. Arlen Specter (chairman) 
presiding.
    Present: Senators Specter and Harkin.

               opening statement of senator arlen specter

    Senator Specter. Good afternoon, ladies and gentlemen. 
Sorry to be a little bit late. We have had some complex 
discussions on the energy bill which is currently pending, and 
it looks as if we may have solved the problem of the energy 
bill. That has occasioned just a little late start here.
    We have three issues which the subcommittee is going to 
take up in a moment, and all of this is in preparation for 
floor action on the bill on Labor, Health and Human Services 
and Education, where we have issues on overtime regulations. We 
may have issues on the union financial audit matter. We may 
have issues on the coal dust rules.
    We are going to be functioning under very tight time 
constraints, but I think we can get all of the issues covered, 
and we are going to have to move along within the time 
constraints of 5-minute opening statements.

STATEMENT OF DAVID D. LAURISKI, ASSISTANT SECRETARY OF 
            LABOR FOR MINE SAFETY AND HEALTH, MINE 
            SAFETY AND HEALTH ADMINISTRATION, 
            DEPARTMENT OF LABOR
    Senator Specter. We start with Assistant Secretary for Mine 
Safety from the Department of Labor, Mr. David Lauriski, who 
prior to his current position served as chairman of the Coal 
Mine Safety Committee for the Utah Coal Operators, a certified 
mine safety professional. He attended Utah State University and 
the College of Eastern Utah. Thank you for joining us, Mr. 
Lauriski, and we look forward to your testimony.
    Mr. Lauriski. Good afternoon, Senator Specter. I am pleased 
to appear before you today to discuss two MSHA proposed rules 
designed to limit miners' exposure to respirable coal mine dust 
and its devastating effects.
    I announced on June 24 that MSHA has stopped all work on 
finalizing these proposed rules. We have recognized for some 
time the need to reduce miners' risk of lung disease, improve 
the coal mine dust sampling program, and restore miners' 
confidence in it.
    MSHA's two proposed rules in July 2000 on this same subject 
as those we are discussing today, accepted public comment and 
conducted public hearings. When I arrived at MSHA in May 2001, 
I reviewed the state of miners' health and concluded that coal 
miners continue to be exposed to excessive concentrations of 
dust, and that there remains an unacceptable risk of miners 
developing pneumoconiosis, or black lung disease. We are 
aggressively using all the tools that the law provides 
including enforcement, education and training, and technical 
assistance, to address miners' health.
    However, MSHA and our Nation's coal miners are working with 
a respirable coal mine dust program that has not fundamentally 
changed since 1980, and the current program has distinct 
weaknesses that only regulatory action can affect. Since the 
mid-1970's, MSHA has sought development of different kinds of 
fast response, direct readout respirable dust monitors for 
measuring the concentration of respirable dust. In 2001, I 
found that personal dust monitors, or PDM's as they are called, 
can produce a real-time readout of dust exposures, but they 
were still in the development stage and not commercially 
available.
    With this knowledge and with the knowledge of the comments 
received on the 2000 proposed rules, I determined that the 
agency should repropose the proposed rule, known as plan 
verification. That proposed rule would require mine operators 
to verify and periodically monitor the effectiveness of their 
mine ventilation plans for the purpose of limiting miners' 
exposure to dust.
    In consultation with the National Institute for 
Occupational Safety and Health, NIOSH, I also decided that we 
would seek further comment on the joint finding by NIOSH and 
MSHA that the average concentration of respirable dust be 
accurately measured over a single shift and reopened the record 
on that as well. We did that in March of this year.
    Both of these proposals were designed to reduce miners' 
over-exposure to dust, thereby reducing the prevalence of black 
lung. As part of this rulemaking process, we received 62 
written comments on the proposals. In May, we held a series of 
six public hearings to receive additional comments and drew 177 
speakers and over 450 attendees.
    Commenters recognized the agency's intent to create greater 
protection for miners' health. However, during the hearings 
representatives of both industry and miners, as well as 
individual miners themselves, told us very clearly that they 
preferred we wait for the results of testing of this new PDM 
technology before proceeding with the rulemakings. And after 
reviewing the public comments, we consulted with NIOSH and 
found that the initial test results of the prototype PDM were 
promising. At that point we stopped work on the rules.
    MSHA is working with NIOSH to complete the in-mine tests of 
the prototype PDM's. It will be necessary to successfully 
complete this testing before we move on to a production model. 
From what we have learned so far from the prototype testing, 
the PDM is truly promising, but still not ready for regular use 
by miners. Once testing of the prototype PDM has been concluded 
and upon a positive finding by NIOSH and MSHA, each agency has 
agreed to contribute $150,000 to purchase production type PDM's 
for further testing.
    Last week MSHA and NIOSH staff met to discuss the progress 
of research and the requirements of future research. Next week 
we are consulting with the parties involved in the in-mine 
testing and the PDM manufacturer to plan for collaborative 
research where production prototypes will be tested in coal 
mining operations throughout the United States.
    As we proceed with this testing, we believe it best serves 
the mining community to leave the current rulemaking record 
open. The long history of the reform of the Federal coal mine 
respirable dust program contained in this extensive rulemaking 
record should be preserved. Moreover, because we have extended 
the comment period indefinitely, the results of the current in-
mine testing of the prototype PDM will become a part of the 
public record. An open record ensures that all information 
obtained during these discussions will be available to the 
public. We believe that is important.
    MSHA, of course, will continue to enforce the current dust 
rules during the interim period while the PDM's are tested and 
developed.

                           PREPARED STATEMENT

    Mr. Chairman, my father worked underground as a coal miner 
for nearly 50 years, the majority of which was at the coal 
production face. He had evidence of black lung disease and 
suffered from heart disease which I believe was exacerbated by 
his years of mining. Improving miners' health and safety and 
addressing the issues related to black lung disease are of 
personal importance to me.
    Again, thank you for your interest in the health and safety 
of our Nation's miners and the opportunity to discuss these 
important issues with you today, and I would be pleased to 
answer any questions.
    [The statement follows:]

              Prepared Statement of Hon. David D. Lauriski

    Mr. Chairman and Members of the Subcommittee: I am pleased to 
appear before you today to discuss two MSHA proposed rules designed to 
limit miners' exposure to respirable coal mine dust and its devastating 
effects. As I announced on June 24, MSHA has stopped all work on 
finalizing the proposed rules.
    We have recognized for some time the need to reduce miners' risk of 
disease, improve the coal mine dust sampling program, and restore 
miners' confidence in it. Since the mid 1970s, MSHA has sought 
development of fast-response, direct-readout respirable dust monitors 
for measuring the concentration of respirable dust. An MSHA Task Group 
reviewed the sampling program in 1991 and made recommendations for 
improvement. The Secretary of Labor's Advisory Committee on the 
Elimination of Pneumoconiosis Among Coal Workers made recommendations 
in 1996. MSHA took prompt action on certain recommendations, for 
example initiating a nationwide awareness program on the hazards 
associated with exposure to excessive levels of respirable coal mine 
and quartz dust and on ways to prevent occupational lung disease. With 
NIOSH, we also implemented a special screening initiative called the 
Miners' Choice Health Screening Program (Miners' Choice) as part of the 
``End Black Lung Now and Forever'' campaign. Miners' Choice offered 
chest x-rays for both underground and surface coal miners. Thousands of 
miners participated. Other Advisory Committee recommendations required 
rulemaking; in response, MSHA proposed two rules in July 2000 on the 
same subject as the proposals we are discussing today, accepted public 
comment, and conducted public hearings.
    When I arrived at MSHA in May 2001, I reviewed the state of miners' 
health and concluded that coal miners continued to be exposed to 
excessive concentrations of dust and that there remains an unacceptable 
risk of miners developing coal workers' pneumoconiosis, or black lung 
disease. I found that personal dust monitors (PDMs) were still in the 
development stage and not commercially available. With this knowledge, 
and with knowledge of the comment received on the 2000 proposed rules, 
I determined that the Agency should repropose one of the 2000 proposals 
and re-open the record on the other.
    The first proposed rule, called ``Verification of Underground Coal 
Mine Operators' Dust Control Plans and Compliance Sampling for 
Respirable Dust,'' or ``Plan Verification,'' would require mine 
operators to verify and periodically monitor the effectiveness of their 
mine ventilation plans in limiting miners' exposure to dust. The second 
proposal, ``Determination of Concentration of Respirable Coal Mine 
Dust,'' or ``Single Sample,'' reopened the record on the joint finding 
by the National Institute for Occupational Safety and Health (NIOSH) 
and MSHA that the average concentration of respirable dust can be 
accurately measured over a single shift. Both of these proposals were 
designed with the goal of sending more miners home healthy every 
working day.
    As you know, the past decades have seen great strides in reducing 
miners' overexposure to respirable coal mine dust and thereby lowering 
the prevalence of black lung disease. The percentage of dust samples 
taken by mine operators that exceeded the 2-milligram per cubic meter 
standard has decreased from 54 percent in 1970 to 8 percent in 2002. 
However, NIOSH and MSHA recently documented that black lung continues 
to occur and everyone agrees that the current rate of black lung 
disease is unacceptably high and that we need to increase our efforts 
to further reduce levels of respirable dust in coal mines. We are 
aggressively using all the tools that the law provides--enforcement, 
education and training and technical assistance to address miners' 
health. However, MSHA and our nation's coal miners are working with a 
respirable coal mine dust program that has not fundamentally changed 
since 1980, and the current program has distinct weaknesses that only 
regulatory action can change.
    One concern is the laborious and cumbersome process that is 
required to identify a violation of the coal mine dust limits. MSHA is 
the only worker health and safety enforcement agency that needs to take 
several full-shift samples and average the results in order to identify 
a violation of a health standard. This is a crucial concern because 
taking an average can mask overexposures that may affect the health of 
miners.
    In March of this year, we published a new regulatory proposal on 
plan verification and, along with NIOSH, we reopened the rulemaking 
record on the use of a single sample for compliance determinations. 
These proposals are designed to reduce miners' overexposure to dust, 
thereby reducing the prevalence of black lung. One would require mine 
operators to verify the effectiveness of their mine ventilation plans 
in limiting miners' exposure to dust; the other would allow MSHA to 
make compliance determinations based on a single sample, rather than an 
average of multiple samples, which can mask overexposures. As you know, 
the rulemaking process is designed to elicit comment from stakeholders 
affected by the proposals. As part of that process, we received 62 
written comments on the proposals. In May we held a series of six 
public hearings to receive additional comments. These hearings were 
held in Pennsylvania, West Virginia, Indiana, Kentucky, Alabama and 
Colorado and drew 177 speakers and over 450 attendees.
    Commenters recognized the Agency's intent to create greater 
protections for miners' health. However, during the hearings, 
representatives of both industry and miners, as well as individual 
miners, told us very clearly that they preferred we wait for the 
results of testing of new PDM technology before proceeding with the 
rulemakings. A PDM is designed to produce a real-time readout of dust 
exposure so that, if there is a problem, action can be taken promptly 
to correct the problem and reduce the risk of miners' overexposure to 
respirable dust. By deferring action on this rulemaking, we will be 
able to gather data and build a consensus on identifying, developing, 
and implementing the most effective technology to address this issue.
    In our proposal, we provided for optional use of PDMs, should they 
prove feasible and be approved for use. At the same time, we felt that 
we ought to take feasible action as soon as possible to improve the 
coal mine dust control program, rather than delay until completion of 
the development and testing of the PDMs, since there is no certainty 
regarding how long that might take to complete.
    After reviewing the public comments, we consulted with NIOSH and 
found that the initial test results of a prototype PDM were promising. 
At that point, we suspended work on the rules. On June 24, we formally 
announced that we had stopped all work on finalizing the proposals. 
Should the PDM prove to be accurate and reliable, we would then examine 
how the PDM could provide optimum benefit in a regulatory scheme for 
controlling dust overexposures.
    MSHA is working with NIOSH to complete the in-mine tests of the 
prototype PDMs in mines located in Pennsylvania, West Virginia, Alabama 
and Utah. It will be necessary to successfully complete this testing 
before we move on to a production model. From what we have learned so 
far from the prototype testing, the PDM is truly promising, but still 
not ready for regular usage by miners.
    Once testing of the prototype PDM has been concluded, and upon a 
positive finding by NIOSH and MSHA, each agency has agreed to 
contribute $150,000 to purchase production prototype PDMs for further 
testing. Last week, MSHA and NIOSH staff met to discuss the progress of 
the research and the requirements of future research for the production 
prototype units. Next week, we are consulting with the parties involved 
in the current NIOSH in-mine testing and the PDM manufacturer. We will 
be getting input on plans for the next step--collaborative research 
where production prototypes will be tested at coal mining operations 
throughout the United States.
    As we proceed with the testing, we believe it best serves the 
mining community to leave the current rulemaking record open. The long 
history of the reform of the Federal coal mine respirable dust program 
contained in this extensive rulemaking record should be preserved. The 
record contains all public comment from the July 7, 2000 and March 6, 
2003 rulemaking proposals, transcripts of the 2000 and 2003 public 
hearings, the 1996 recommendations of the Advisory Committee on the 
Elimination of Pneumoconiosis, and other evidence relevant to the 
rulemaking. Moreover, because we have extended the comment period 
indefinitely, the results of the current in-mine testing of the 
prototype PDMs will become a part of the public record. An open record 
ensures that all information obtained during these discussions will be 
available to the public. We believe that is important. The record will 
remain open until a decision is made on our next step.
    MSHA of course will continue to enforce the current respirable coal 
dust rules during the interim period while the PDMs are tested and 
developed.
    Mr. Chairman, like many, I come from a coal mining family. My 
father went to work underground as a coal miner in his teens in order 
to help support his family. His mining career spanned nearly 50 years 
of underground work, the majority of which was spent in the face of the 
mine. He had evidence of black lung disease and suffered from heart 
disease, which I believe was exacerbated by his years in the mines. 
Improving miner safety and health and addressing the issues related to 
black lung disease are of personal importance to me.
    Again, thank you for your interest in the health of our Nation's 
miners and the opportunity to discuss these important issues with you 
today. I would be pleased to answer any questions.

    Senator Specter. Well, thank you very much, Mr. Secretary.
    I think that the preferable way to proceed, before 
questioning you, would be to have the second panel present 
their views and have the entire picture on the table. Then we 
can proceed to Q&A. So if you would step down for just a 
minute, I would like to call on Mr. Joseph Main and Mr. David 
Beerbower to testify.

STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR, DEPARTMENT 
            OF HEALTH AND SAFETY, UNITED MINE WORKERS 
            OF AMERICA
    Senator Specter. Mr. Main has been the Administrator of the 
United Mine Workers of America, Department of Occupational 
Health and Safety, since 1982. Since 1998, he has served on the 
Centers for Disease Control and Prevention Federal Advisory 
Committee on Mine Health Research. Welcome, Mr. Main. We look 
forward to your testimony.
    Mr. Main. Thank you, Senator. On behalf of the miners of 
this country, I want to pass on their appreciation for the 
hearing that is being held today. It is on a very important 
issue that has a lot to do with the very lives of coal miners.
    I do not know how much you have heard about the public 
hearings that have been held throughout the coal fields on the 
proposed rule that MSHA has issued, but I could tell you this. 
After six public hearings, it was soundly rejected by coal 
miners across this country. After about 200 witnesses testified 
at those public hearings, there was no support for this rule.
    One of the great concerns of the miners is that that rule 
is still alive and well. It still sits ready, poised to have a 
final rule crafted from, and it contains many provisions that 
violate the Mine Act, ignore the historical record that has 
been built, including hearings before your very committees in 
the past to reform the black lung program. It fails miserably 
to address the needs of the Nation's miners.
    We urge, as one of the outcomes of this, for action to be 
taken through this body to cause the withdrawal of that rule 
which would harm miners in our opinion, and in its place have 
the agency focus its full attention on crafting a rule that the 
historical record has shown that is needed and that is 
desperately wanted by coal miners, one that will reduce the 
levels of coal mine dust in this country and eliminate the 
unhealthy coal dust that miners breathe that give them the 
black lung disease.
    There is several provisions of that proposal, and I am not 
going to get into them today and we do not have the time to do 
that. But I am going to hit on a couple issues.
    One of the core issues of this proposal that is wrongheaded 
would turn on its head provisions that Congress gave miners in 
the 1969 Coal Mine Act. What it would do would be to allow mine 
operators to seek approval from MSHA to increase the dust 
levels in the Nation's mines and use, instead of environmental 
controls, respiratory controls. That we think is wrongheaded 
and is a complete step backwards in terms of protecting the 
Nation's miners. While doing that, under the proposals, which 
are very complicated and confusing and difficult for miners or 
even safety professionals to understand, but the nonetheless at 
the end of the day, would serve to allow dust levels to rise in 
the Nation's coal mines up to, legally, 8 milligrams of dust. 
Now, that is just not germane for the mine workers saying that. 
That is what is on record by the agency officials themselves. 
It will also rise to a level of, according to the MSHA 
officials, 9.32 milligrams before the operator could be cited 
where they would be on that so-called 8 milligram standard.
    How this occurs is real simple. Where we take a dust sample 
at today in the mine on a section, the law says that you cannot 
exceed 2 milligrams. What the plan is, is to allow operators to 
submit proposals to increase the dust levels, claiming they 
have exhausted their engineering controls, and in lieu of those 
engineering controls, put air stream helmets on the miners.
    Senator Specter. You say the law allows what precisely?
    Mr. Main. The law right now says that you cannot exceed 2 
milligrams of respirable dust per cubic meter of air averaged 
over a shift, and that law gets turned on its head by using a 
deceptive formula that allows a factor to be applied that would 
allow the dust to be raised four times that level based on 
approvals from MSHA to do so.
    But the key here is that operators would abandon the 
development of new engineering controls because the operators 
would put the agency in a box to prove to me they are feasible. 
They do not exist yet, for example. It is going to completely 
end, we believe, over the long term the development of new dust 
controls and allow by its own measure the increase of dust.
    Now, the agency has argued it does not do that. That is not 
in there. It is in there. Why else would you have a provision 
in the law that allows you to seek to increase dust levels and 
to use respirators if the intent was not to do that, because 
that is the clear end result.
    We urge the committee to act to end that provision as well 
as other provisions of the proposed rules that is very harmful 
for miners. In 1995, NIOSH issued a criteria document 
recommending a number of changes to the respirable dust 
program. In 1996, a U.S. Department of Labor Secretary 
appointed a fellow advisory committee to come up with 
recommendations to end this terrible disease, to develop 
standards. Laced through these proposed rules is standard after 
standard that both ignore and are contrary to the 
recommendations of both of those bodies. And we urge the 
attention be placed on building this continuous dust monitor, 
which I just personally tested this last week in an underground 
mine in Alabama. It is a terrific device and it will help 
miners.

                           PREPARED STATEMENT

    But I think there is more to the record than 5 minutes 
allows us to address today. Mr. Chairman, I will just say this 
in closing. I, on behalf of the miners who have come out to 
these hearings, urge this body to act to cause that proposed 
rule issued March 6 by MSHA to be withdrawn and removed from 
further consideration. Thank you very much.
    [The statement follows:]

                  Prepared Statement of Joseph A. Main

    I appreciate the opportunity to appear here today on behalf of the 
United Mine Workers of America and miners across the country to address 
the ``Proposed MSHA Rules on Coal Dust'' and the coal mine respirable 
coal mine dust program. Included as part of my testimony is an April 
17, 2003 letter I forwarded to David Lauriski, Assistant Secretary of 
Labor for MSHA. It includes extensive comments on MSHA's proposed rules 
to completely overhaul the current respirable dust standards. Those 
proposed rules are 30 CFR Parts 70, 75, and 90--Verification of 
Underground Coal Mine Operators' Dust Control Plans and Compliance 
Sampling for Respirable Dust, and 30 CFR Part 72--Determination of 
Concentration of Respirable Coal Mine Dust. Those proposed rules need 
to be withdrawn, and new proposals must be crafted to meet the needs of 
miners.
    Miners across the country were surprised and dismayed by the 
proposed respirable dust rules issued by MSHA on March 6, 2003. They 
are complicated, confusing and difficult to comprehend. More 
importantly, they would erode the protections contained in the Federal 
Mine Safety and Health Act (Mine Act). They also are contrary to 
numerous recommendations of NIOSH: the NIOSH, 1995 Criteria for a 
Recommenced Standard--OCCUPATIONAL EXPOSURE TO RESPIRABLE COAL MINE 
DUST, as well as the 1996 Report of the Secretary of Labor's Advisory 
Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers.
    There is an unquestionable need to overhaul the respirable coal 
mine dust program to lower the unhealthy coal mine dust levels. It has 
been known for years that if miners breathe unhealthy coal mine dust, 
their lungs can be destroyed and lives cut short. The unhealthy dust 
causes the disease called pneumoconiosis and often referred to as the 
``Black Lung'' disease has claimed the lives of tens of thousands of 
miners, many who could only survive while attached to oxygen tanks 
gasping for air. A study entitled ``Pneumoconiosis Prevalence Among 
Working Coal Miners Examined in Federal Chest Radiograph Surveillance 
Programs--United States, 1996-2002'' issued by NIOSH in April of this 
year confirmed that working miners are still getting the disease. It 
identified several hundred working miners afflicted with stages of the 
disease based on recent chest x-rays. Most of the x-rays were taken 
through the ``Miners Choice'' chest x-ray program which your committee 
provided special funding for in MSHA's appropriations. That study 
however did not include x-rays from many miners who work at smaller 
mining operations suspected of being the most at risk.\1\ Over 1,000 
miners continue to die each year from the disease. The anguish and 
suffering of victims afflicted with this disease is immeasurable. 
Disability and health care costs from the disease are in the tens of 
billions of dollars. According to the Department of Labor, as of May 
this year there were about 106,519 recipients of federal black lung 
disability benefits. That does not include about 6,000 black lung 
claims being paid by mine operators or miners receiving state 
disability benefits not covered by the federal program.
---------------------------------------------------------------------------
    \1\ Funding for the ``Miners Choice'' program was unfortunately 
ended by MSHA with a majority of the nation's miners not receiving the 
x-rays. I urge congressional action to restore it, and to shift funding 
for the program to NIOSH who is better suited to conduct the chest x-
ray program.
---------------------------------------------------------------------------
    The respirable dust sampling program has been wrought with 
manipulation and fraud. That has been the subject of congressional 
hearings, investigations and study over the years. Government records 
show that in the 1990's alone, over 160 companies and/or individuals 
were convicted on criminal charges of fraudulent dust sampling 
practices which hid unhealthy dust levels. Given the historical record, 
that may be just the tip of the iceberg. Just two months ago, a mine 
operator and four company officials were convicted in federal court on 
charges of violating the federal mine laws aimed at controlling coal 
mine dust. According to reports, the violations occurred over a four 
year period from the time the mine opened until the company was caught.
    Endless complaints have been lodged by miners about manipulation of 
the dust sampling program by mine operators for years as they have 
called on the government to reform the respirable dust program. 
However, the proposals MSHA presented for public comment both ignored 
lessons learned over decades of illness and operator abuse, and 
disregarded promising technological advances that the mining community 
expects will present valuable ``real-time'' information which can 
prevent miners' future over-exposure to the deadly dust.
    MSHA's March 2003 proposals are filled with formulas, exemptions 
and loopholes that are subject to unlimited interpretation. They are 
wrongheaded, ill-advised and would not effect the necessary reform of 
the respirable coal mine dust program.
    While the recent proposals included some improvements, such as 
taking a single respirable dust sample of a miner to determine 
compliance, the improvements were overshadowed by numerous adverse 
provisions. For example, they set the stage for allowing an increase in 
respirable dust levels and would dramatically reduce compliance-
sampling in the nation's coal mines.
    Congress made clear 33 years ago, with the passage of the 1969 
Federal Coal Mine Health and Safety Act, that respirable coal dust in 
the mine atmosphere was to be reduced to protect miners from disease. 
Section 201(b) of the Mine Act states that ``. . . it is the purpose of 
this title to provide, to the greatest extent possible, that the 
working conditions in each underground coal mine are sufficiently free 
of respirable dust concentrations in the mine atmosphere to permit each 
miner the opportunity to work underground during the period of his 
entire adult working life without incurring any disability from 
pneumoconiosis or any other occupational-related disease during or at 
the end of such period.''
    The 1969 Mine Act also set the maximum dust levels that could be 
allowed in the nation's coal mines. Section 202(b)(2) of the Mine Act 
states that ``. . . each operator shall continuously maintain the 
average concentration of respirable dust in the mine atmosphere during 
each shift to which each miner in the active workings of such mine is 
exposed at or below 2.0 milligrams of respirable dust per cubic meter 
of air.''
    The 1969 Mine Act prohibited the use of respirators as a substitute 
for environmental controls. Section 202(h) of the Mine Act states that 
``. . . Use of respirators shall not be substituted for environmental 
control measures in the active workings . . .''
    MSHA's proposals would overturn these specific protections by 
allowing mine operators to exceed the maximum 2 milligram (mg/m\3\) 
respirable dust standard and to replace environmental controls with 
respirators. Those provisions would not only serve to increase 
respirable dust in coal mines but would also interfere with the 
continuing development of respirable dust controls that could contain 
unhealthy coal mine dust.
    In a September 10, 1997 document filed by then-General Manager of 
Energy West Mining, Dave Lauriski (who is now current Assistant 
Secretary of Labor for MSHA) while seeking rule making by MSHA on 
broader use of respirators, Mr. Lauriski acknowledged that MSHA's 
historical interpretation of the Mine Act prohibited the use of 
respirators as a substitute for environmental/engineering controls. On 
page 5 of that document, Lauriski stated the following: ``Nevertheless, 
for years the Secretary (through the Secretary's delegates the 
Assistant Secretary of Labor for Mine Safety and Health and officials 
of the Mine Safety and Health Administration (`MSHA')) has taken the 
policy position that, because Mine Act Sec. 202(h) states the `use of 
respirators shall not be substituted for environmental control 
measures,' it altogether prohibits the use of respirators (even as a 
supplement to environmental controls) as a means of compliance with the 
respirable dust standards of Title II of the Mine Act.'' Lauriski 
disagreed with that interpretation by the government. Now that Lauriski 
controls the reins at MSHA, he proposed implementing rules which 
previous administrations rejected.
    As for the increased respirable levels, these are not clearly 
stated in the proposed rules but are apparent from the complicated 
formulas, qualifiers and exemptions. Despite initial denials by agency 
officials, the proposed rule would allow mine operators to increase 
respirable dust levels and to exceed the 2 mg/m\3\ standard--even with 
the possibility of having the average concentration of respirable dust 
in the mine atmosphere of active workings approved by MSHA exceeding 9 
mg/m\3\ before being considered illegal. One way for that to occur is 
under Part 70.209 of the proposed rule. That proposed provision would 
allow operators to (a) claim they believe they are using all feasible 
environmental respirable dust controls, and then (b) file a request to 
MSHA for approval to increase the dust levels exceeding the 2 mg/m\3\ 
including a mandate that miners must wear respiratory protection in 
lieu of the environmental controls.
    Definitions in Part 70.2 of the MSHA proposed rules including 
Equivalent concentrations and Protection factor (pf) would be used to 
establish the maximum levels of respirable to be approved when an 
operator files a request to exceed the standard. Those definitions 
(coupled with the previous provisions) could allow the respirable dust 
levels to be increased up to a maximum of 8 mg/m\3\ at the same exact 
locations measured with the same instruments the law currently 
prohibits exceeding 2 mg/m\3\. Definitions in parts 70.2 including 
Citation threshold value (CTV), Table 70-2 Part 70.218 and other 
provisions would be used to determine when the operator would be cited. 
Those standards could allow a mine to have respirable dust levels reach 
9.32 mg/m\3\ before MSHA would cite the operator, even though the 
current law prohibits dust levels exceeding 2 mg/m\3\. In other words, 
the law does not permit this to occur.
    An exchange between Joe Main, Administrator of Occupational Health 
and Safety for the United Mine Workers of America, and MSHA official 
Bob Thaxton, who was presiding over the May 6, 2003 public hearing on 
the proposed dust rules, sheds more light on these proposals:

    Mr. Main. Okay. And in this mine that I talked about, let's say 
that you have this factor of four, you're at a mine environment 
measured the same way we do now, reading 8 milligrams----
    Mr. Nichols. Let's deal with that 8 milligrams. Did you tell Joe 
that mine operators could go to 8 milligrams?
    Mr. Thaxton. What we talked about, Joe, is that there is no 8 
milligrams actually specified in the rule.
    Mr. Main. That's right.
    Mr. Thaxton. We said it's a protection factor that would be 
assigned could, theoretically, allow somebody to go up to a maximum of 
8 milligrams.
    Mr. Main. When I asked you the specific question, Bob, okay, how 
much dust, when you do that formula, that factor of four, how much dust 
would you be actually measuring?
    Mr. Thaxton. That's why I said----
    Mr. Main. It could go up to what?
    Mr. Thaxton. It could go up to a maximum of 8 milligrams.

    The proposals also would substantially reduce compliance sampling. 
The agency plans, through Agency policy, to reduce current compliance 
sampling by as much as 90 percent. Compliance sampling would be reduced 
to one shift a year in the vast outby areas of coal mines and as little 
as three shifts a year on coal producing sections.
    The proposals also ignored the extensive efforts by labor, 
industry, and NIOSH, which were working cooperatively toward 
development of a revolutionary ``continuous sampling'' device that 
could change the landscape of the respirable dust sampling program. The 
parties had supported development of along sought continuous dust 
sampling device, with one that is now housed in a miner's cap light 
battery compartment, that would--for the first time--provide accurate 
and instantaneous information on the dust levels miners are exposed to 
on a continuous basis. We were working to develop a strategy for 
reforming the respirable dust program centered around the revolutionary 
continuous monitoring device which could also address a number of 
needed reforms. The particular device, called the PDM-1 (personal dust 
monitor) has already undergone extensive development and testing and 
has proved to measure dust as accurately as the dust sampling devices 
currently in use.
    Years of work, considerable taxpayer dollars, and the tremendous 
efforts of the NIOSH research laboratory in Bruceton, Pennsylvania led 
to the development of the PDM-1. By being housed inside the cap light 
battery, it can be comfortably worn by miners. And unlike the current 
dust samplers, the PDM-1 could provide miners instant and constant 
information on dust levels they are exposed to on each shift--every 
day; they also allow for a downloading of the dust data--even to MSHA--
at the end of the shift. It allows miners to project dust exposures for 
the remainder of the shift and can lead to instant changes in dust 
controls, thereby preventing overexposure to unhealthy dust. This 
device would empower both miners and operators with accurate levels of 
respirable dust so miners can be protected from unhealthy respirable 
coal mine dust. The device can also be used for compliance sampling as 
well as dust control verification on a daily basis.
    The parties had anticipated that the PDM-1 device would be the 
centerpiece of any revised respirable dust sampling program. MSHA 
surprised the parties involved in the development of the continuous 
dust monitor--even though it was proving to work accurately--and issued 
the March 6, 2003 proposals just as NIOSH was preparing for the last 
round of scheduled in-mine testing of the continuous dust sampling 
devices. Not only is continuous dust monitoring not the centerpiece of 
the MSHA proposals, but it is only mentioned as a suggestion which 
operators may choose to utilize. That was despite the Agency's promises 
to miners over the years to get such a needed device in the nation's 
coal mines to protect miners from the unhealthy dust that has stricken 
tens of thousands of miners.
    MSHA's proposals also disregarded an extensive public record on 
reforming the respirable coal mine dust program including the comments 
on the respirable dust rules proposed by MSHA in 2000 that was soundly 
rejected by both labor and industry. The 2003 proposals were from 
flawed proposals which both labor and industry had demanded be 
withdrawn in 2000. During the public hearing held by MSHA on May 6, 
2003, John Gallick, a company safety manager for RAG Emerald Resources, 
Emerald #1 Mine in Pennsylvania summed up the frustrations of both 
labor and industry with the following statement: ``First let me say 
that this rule appears to closely parallel the previous proposed rules 
that were soundly rejected by all the stakeholders. I cannot understand 
why MSHA has not listened to the stakeholders, and actually attempted 
to develop a rule that the stakeholders could support.''
    Miners from across the country attended the six public hearings 
held throughout the coal fields to respond to the rules proposed by 
MSHA earlier this year. When the public hearings ended one fact was 
certain--the Agency proposals were soundly rejected. Despite 
overwhelming demands for withdrawal of these rules, however, the Agency 
refused to scrap them. Instead, it simply extended the comment period, 
but adhered to the proposals as published in March 2003. This leaves 
the highly-flawed proposals in place, from which final rules might 
still be crafted. However, MSHA's proposals are so flawed that they 
must be tossed out.
    I urge this Committee to take action that would require MSHA to 
withdraw the March 6, 2003 proposed dust rules and cause MSHA to go 
back to the drawing board and draft new rules, rules that would address 
the needs of the nation's miners to protect them from disease resulting 
from unhealthy coal mine dust that has already claimed the lives of 
tens of thousands of miners.
    Such new proposals should include increased respirable dust 
sampling--in particular mandating requirements for continuous dust 
sampling devices in all underground coal mines; decreasing the 
respirable dust levels in coal mines; sampling the miners' full shift 
of work, with no margin of error added before operators will be cited 
when unhealthy dust levels are identified. Compliance sampling also 
needs to be required by regulation and in a way that would bring about 
long overdue credibility to the respirable-dust program. Meaningful 
miners' participation in the dust sampling program is also essential 
for there to be confidence in the troubled respirable dust sampling 
program.
    It is imperative that among other improvements, the respirable dust 
levels in coal mines are lowered and that sampling of the dust is 
increased to assure miners are protected from disease. It is imperative 
that the respirable dust regulatory program provide confidence that 
coal mine dust is controlled to healthy levels so miners will not 
suffer disease.

    Senator Specter. Thank you, Mr. Main.

STATEMENT OF DAVID A. BEERBOWER, VICE PRESIDENT FOR 
            SAFETY, PEABODY ENERGY CORPORATION
    Senator Specter. We now turn to Mr. David Beerbower, Vice 
President for Safety, Peabody Energy Corporation, St. Louis, 
Missouri. Thank you for joining us today, Mr. Beerbower, and 
the floor is yours.
    Mr. Beerbower. Thank you, Mr. Chairman. I am here 
representing in my capacity as Vice Chairman of the National 
Mining Association's Health and Safety Committee. I would also 
note that I am the Chairman of the Health and Safety Committee 
at the Bituminous Coal Operators of America, and we are 
partnered with the United Mine Workers in several initiatives 
together for safety and health.
    I think it is important, as we talk about the issues here 
today, that we really not focus all of our attention on the 
debate about these rules, but I would rather focus on what we 
envision--and I think the United Mine Workers and MSHA agree 
with this--that the PDM could be the cornerstone for a vast new 
paradigm in the way that we have looked at dust control and the 
way that miners can control their exposures to dust.
    In public testimony, we have put our comments into the 
rulemaking process, and that is a matter of the record.
    Suffice it to say, though, that we do support the Assistant 
Secretary's decision to announce on the 24th of June that he 
was suspending the current rulemaking to permit an ongoing 
evaluation of the PDM. That evaluation will be completed prior 
to closure of the rulemaking record and completion of that 
regulatory initiative.
    Simply put, we envision the PDM to be the centerpiece upon 
which this new program should be built. On the week of June 
23rd, we tested this device at one of our mines in southern 
West Virginia, and I had the pleasure of being present during 
some of that testing and did wear one of these devices. I was 
amazed at the capabilities of this device, although there are 
certain shortcomings that need to be worked on in the software 
and in the hardware. I believe those are manageable and ones 
that we need to move forward with if we are going to have this 
device available to miners.
    The good news about this device is it does show a miner 
exactly what he is exposed to in real time on a personal basis 
so that if he or she determines that they are being over-
exposed or they are in an area that needs some additional 
controls, they can take immediate action to prevent any over-
exposure above the 2 milligram standard. This PDM represents a 
technological breakthrough that permits extended real-time 
assessment of respirable dust concentrations and will enable 
real-time corrective actions to prevent those over-exposures.
    We commend MSHA and NIOSH for their continued support and 
commitment to purchase 25 production models of the prototypes 
following completion of this initial round of testing. The 25 
units will permit broader testing in different applications to 
ensure the integrity, practicality and feasibility of these 
units. This final step is an integral element of the validation 
process and will enable the parties, labor, industry, and 
Government, to then consider a deployment strategy upon which 
new regulations can be based.
    Beyond the PDM, we have shared with MSHA on several 
occasions what we believe to be a background for a new dust 
paradigm. Our recommendations were contained in a series of 
letters that provided an outline for a new respirable coal dust 
sampling program that we believed then would enhance the 
protections afforded to miners against the potential health 
consequences of excessive dust.
    However, the potential that the PDM offers has moved us 
beyond our thinking that we had in 1996. If this potential 
proves to be feasible, we see the PDM being the keystone of a 
new respirable dust regulation that will enable us to prevent 
over-exposures.

                           PREPARED STATEMENT

    Mr. Chairman, protecting miners from over-exposures to 
respirable dust remains a complex and challenging issue, and it 
is one that we are committed to as operators and as an 
association. There are many factors that play into this. Mine 
design, geology, and equipment are important variables in 
designing an effective dust control plan. I believe we are on 
the verge of having a tool that holds significant promise to 
assist us in fulfilling our ultimate goal, the elimination of 
workers' pneumoconiosis.
    Thank you for the opportunity to speak here.
    [The statement follows:]

                 Prepared Statement of David Beerbower

    Thank you, Mr. Chairman and Members of the Subcommittee. I am David 
Beerbower, Vice President of Safety for Peabody Energy Corporation. I'm 
appearing today in my capacity as Vice Chairman of the National Mining 
Association Safety and Health Committee. I would note that I also serve 
as Chairman of the Safety Committee for the Bituminous Coal Operators 
Association, which partners with the United Mine Workers in a joint, 
Safety and Training Committee. I have been involved in my present 
capacity for 12 years and have worked in various operating positions in 
underground coal mines during my 34 year career with the industry.
    Before I turn to the specifics of the Mine Safety and Health 
Administration's (MSHA) respirable coal mine dust program a few words 
about NMA and the importance of mining to our everyday lives--a fact 
overlooked by most Americans. NMA represents the producers of energy, 
industrial and agricultural minerals. NMA members produce the majority 
of coal, copper, gold, lead and zinc produced in the United States. 
Without their products the words read here could not have been 
produced. Before hardware and software, you must have earth ware--the 
minerals that form the foundation on which the U.S. economy is built. 
The ink that forms the words you read is derived from minerals. The 
light by which you read may be produced by a tungsten filament fueled 
by electricity transmitted through copper wire and generated from the 
burning of coal which produced nearly 56 percent of our nation's 
electricity.
    Yet, despite its indispensable contribution to American commerce, 
mining is a business subject to the often perverse whims of both 
geology and economics. Still, to the industry's credit, technological 
ingenuity, better training, improved engineering methods and 
conscientious safety awareness by miners, mine operators and equipment 
manufacturers has enabled the industry to achieve commendable safety 
and health improvements.
    Recently much attention has been focused on a recent regulatory 
initiative by the Mine Safety and Health Administration to revise the 
existing regulations governing how coal operators sample for and 
protect miners from exposure to respirable coal mine dust. This issue 
is of paramount importance to the industry as we share a common goal 
with MSHA and the coal miners themselves--the total elimination of coal 
workers pneumoconiosis.
    Since enactment of the Mine Act we've seen a dramatic decline in 
respirable coal dust levels. The statutory limit of 2.0 mg/m\3\ which 
became effective in 1972, three years following passage of the Act, has 
improved the conditions to which miners are exposed. In 1969 the 
average dust concentration was 7.7 mg/m\3\. Today we find, based upon 
the results of sampling conducted by both operators and MSHA, average 
dust levels of 1.1 mg/m\3\, well below the statutory limit, but problem 
areas still exist. Today some operations have reached the technological 
limitations of traditional engineering and environmental controls and 
in those cases interim measures are needed to protect miner's health 
while new control technologies are explored.
    It is not our intent today to get into a debate about the benefits 
or shortcomings of MSHA's recent regulatory initiative. Rather, we want 
to share our views of what we envision a new dust sampling program 
would encompass. Our public testimony on the proposed rule is part of 
the rulemaking record and is available. Suffice it to say that we 
support the Assistant Secretary's decision announced June 24 to suspend 
the rulemaking to permit on-going evaluation of new dust sampling 
technology, the Personal Dust Monitor (PDM). The evaluation will be 
completed prior to closure of the rulemaking record and completion of 
the regulatory initiative.
    Simply put, we envision the PDM to be the centerpiece upon which 
the new program is built. Never before have we had within our grasp a 
tool to empower miners and mine operators to initiate intervention 
actions based upon the results of real-time sampling. We say this 
recognizing that testing of the PDM has not been completed and that the 
tests conducted to date indicate that manageable design changes and 
software modifications are necessary before production prototypes are 
manufactured. But even with this we are excited about the prospect for 
this technology and how dramatic a difference it can make.
    During the week of June 23 we tested the PDM at our Harris No. 1 
mine located in Southern West Virginia. I was present for a portion of 
the testing and wore one of the devices during my time underground. The 
device exceeded my expectations and enabled us, in the short time it 
was in use, to detect conditions affecting dust levels that might have 
otherwise gone unnoticed. Of great importance, we were able to take 
immediate remedial action to reduce the dust levels. Contrast this to 
the current system where we collect samples, mail them to MSHA's 
laboratory for analysis and obtain the sample results 2 to 3 weeks 
later after we've mined through a problem area.
    Mr. Chairman the PDM represents a technological breakthrough that 
permits extended real-time assessment of respirable dust concentrations 
that will enable real-time corrective actions to prevent overexposures. 
At long last we have within our reach a tool that will provide 
personal, real-time sampling results so that miners and operators can 
take corrective actions when needed.
    The path we've followed to get to this point has been long and 
arduous. It began more than ten years ago when a decision was made to 
explore the possibility of taking existing proprietary technology, the 
Tapered Element Oscillating Microbalance (TEOM), and adapt it for use 
in the underground environment. This decision gave rise to the 
development of a cumbersome machine mounted device which proved that 
the TEOM technology could work underground. It was then decided to 
explore the possibility of miniaturizing the technology so that miners 
could have a personal tool to provide them with real-time sampling 
results. Regrettably, decisions made by the previous Administration's 
Assistant Secretary delayed, by months if not years, our reaching the 
important milestone that has been reached today.
    We commend MSHA and NIOSH, the National Institute for Occupational 
Safety and Health, for their continued support and commitment to 
purchase 25 production prototypes following completion of this initial 
round of testing. The 25 units will permit broader testing in different 
applications to ensure the integrity, practicality and feasibility of 
the units. This final step is an integral element of the validation 
process and will enable the parties, labor, industry and government to 
then consider a deployment strategy upon which new regulations can be 
based.
    Beyond the PDM we have shared with MSHA, on several occasions 
dating back to 1996, our views on a wholesale revision of the existing 
dust program. Our recommendations were contained in a series of letters 
that provided an outline for a new respirable coal mine dust sampling 
program that we believed then would enhance the protections afforded 
miners against the potential health consequences where excessive dust 
concentrations are encountered.
    However, the potential that the PDM offers has moved us beyond our 
thinking of 1996. If this potential proves to be feasible we see the 
PDM being the cornerstone of a new respirable dust regulation that will 
enable us to prevent overexposure to respirable dust on a real-time 
rather than after the fact basis.
    Mr. Chairman protecting miners from exposure to respirable coal 
mine dust remains a complex and challenging issue. There is no one 
simple solution. Mine design, geology and equipment are important 
variables in designing a dust control program, and these are mine 
specific. Thankfully we are, I believe, on the verge of having a tool 
that holds significant promise to assist us in fulfilling our goal--
elimination of coal workers pneumoconiosis.
    Thank you for this opportunity. I'd be happy to try to answer any 
questions you might have.

    Senator Specter. Thank you very much, Mr. Beerbower.
    Mr. Lauriski, would you step back to the table so we can 
have an analysis three ways on what we are doing here?
    When the Federal statute, the Federal Mine Safety and 
Health Act of 1977, as amended in 1995, provides that the 
miners shall be exposed at or below 2.0 milligrams of 
respirable dust per cubic meter of air, how do we move, Mr. 
Lauriski to your testimony on up to 8 milligrams?
    Mr. Lauriski. Senator, I never testified that we would go 
up to 8 milligrams. In fact, this rule does not allow miners to 
be exposed to 8 milligrams of dust, and I am going to point to 
two things.
    Senator Specter. But where does the 8 milligrams come in 
then?
    Mr. Lauriski. Well, Mr. Main, in his analysis of what this 
rule says, believes that the protection factors that we have 
assigned devices that can be used to protect miners would allow 
the miners to be exposed to milligrams up to 8. That is not 
true.
    Senator Specter. What would the miners be exposed to?
    Mr. Lauriski. They would be exposed, depending upon the 
protection factor to a divisor of 4 into the actual milligrams 
that were in the air. That would be their actual----
    Senator Specter. How many milligrams?
    Mr. Lauriski. They would divide the actual mine environment 
by the protection factor that was afforded. It can range from a 
protection factor of 2 up to a protection factor of 4. That is 
based upon all the science that has been done on these devices.
    Senator Specter. Well, how many milligrams of coal dust 
would they then be exposed to?
    Mr. Lauriski. It would depend on what the mine atmosphere 
was. Let us assume that the mine atmosphere was 2 milligrams on 
the outside of this device. Their actual exposure using these 
protection factors, if you used a protection factor of 4, it 
would be .5 milligrams per cubic meter of air.
    Now, these devices that Mr. Main talks about that we have 
incorporated into this rule were first incorporated into the 
proposed rule of July of 2000, before I arrived here, Senator, 
and they recognized the value that these devices have in 
protecting miners' health. We brought that rule forward into 
this proposed rule of 2003 because they have the ability to 
protect miners. Many miners use these across the country today. 
These devices do not substitute for engineering or 
environmental controls. They are to be used only as a 
supplement to those controls, and that is very clear in our 
proposed rule.
    I would also say that, one, I cannot override what the 
statute says.
    But two, I would direct you to our proposed rule where it 
talks about, in section 7100, where it says: ``each operator 
must continuously maintain the average concentration of 
respirable dust in the mine atmosphere during each shift to 
which each miner in the active workings of each mine is exposed 
at or below 2 milligrams per cubic meter of air.''
    Senator, we have not advocated, nor do I advocate, the 
allowance of exposing miners to any concentration above 2 
milligrams, and we have not attempted to do that. What we have 
attempted to do is to leave the hierarchy of controls in place 
and provide miners with a supplement to protect their health 
from the debilitating effects of black lung.
    Senator Specter. Mr. Lauriski, precisely why was the new 
rule suspended?
    Mr. Lauriski. We stopped work on this new rule for two 
reasons. One, we heard very clearly during the public process, 
the public comment period, about the potential of these devices 
here. This is the PDM. Hearing that comment and knowing that we 
had some favorable results from the first round of testing, I 
made the conscious decision that we should then suspend further 
work on this rule, giving us the time and the opportunity to 
work with NIOSH to see how this device can best be used in a 
regulatory environment for miners.
    Senator Specter. You say the first results were positive?
    Mr. Lauriski. Yes, sir.
    Senator Specter. Then why was it that you suspended the 
rule?
    Mr. Lauriski. We did not suspend the rule. We left the 
rulemaking record open. We simply stopped work on the rule. We 
extended the comment period indefinitely.
    Senator Specter. The information I have is that on June 
24th of this year, the Mine Safety and Health Administration 
announced that it would suspend the proposed rules and keep the 
record open until further notice. Is that incorrect?
    Mr. Lauriski. No, that is correct. We suspended work on the 
rule, but kept the record open.
    Senator Specter. Well, why did you suspend the proposed 
rules if the testing up to that point was satisfactory?
    Mr. Lauriski. Well, Senator, we did not suspend the rule. 
We suspended work. There are differences. As I understand the 
Administrative Procedure Act----
    Senator Specter. You suspended the proposed rule.
    Mr. Lauriski. No. We suspended work on the rule and kept 
the record open. You suspend a rule----
    Senator Specter. I just read you my information and you 
said it was accurate, and that is: ``The Mine Safety and Health 
Administration announced it would suspend the proposed rules 
and keep the record open until further notice.''
    Mr. Lauriski. Senator, I am not sure where you got that. I 
could read you exactly what we said in our release.
    Senator Specter. Please do.
    Mr. Lauriski. All right. What we said is that: ``all 
activity to finalize the proposed rules will stop, i.e., is 
suspended, the work, and the record will remain open.'' This 
information conveyed the practical circumstance of what the 
agency intended, not the specific legal action the agency would 
take when publishing a Federal Register document. And the 
Federal Register document that we provided keeps the rulemaking 
record open indefinitely. That allows us the opportunity to 
take the information we gather from the testing of the PDM's 
and to use that information from that test and incorporate it 
into the rulemaking record itself.
    Senator Specter. Well, why did you take the action that you 
did, whatever you characterize it as a suspension of the rules 
or just about the same thing which you have just said? Why did 
you take that action?
    Mr. Lauriski. So that we would have the time to see how 
these devices were going to function in the mine and if the 
prototypes worked effectively, we could then commit some 
resources, dollar resources, to the purchase of additional 
units and then put those units in the mine--and we are doing 
this in consultation with NIOSH--production units, and best 
determine how these units can be used in a regulatory fashion.
    Senator Specter. Mr. Main, do you think it is possible to 
use that personal dust monitor with modifications?
    Mr. Main. We have long supported the development of the 
continuous dust monitors. As a matter of fact, the mine workers 
and miners are on record back as early as the mid-1970's 
calling for its development. We support it as a continuous dust 
monitor that is in the mine every day, even as MSHA promised.
    If I might, I would like to take a minute just to clear the 
record.
    Senator Specter. I would be glad to have you do that if you 
deal with my question first.
    Mr. Main. Sure.
    Senator Specter. And that is, do you think that this 
personal dust monitor can be modified or programmed to meet the 
concerns that you have?
    Mr. Main. Absolutely.
    Senator Specter. It can be. Okay, now proceed with your 
other point.
    Mr. Main. Thank you. I think the debate about the increase 
of the dust did not come from Joe Main, did not come from the 
mine workers. It came from a series of questions asked of MSHA 
during a preliminary meeting on the rule before we ever got 
into the public hearings because this rule is so complicated 
and so confusing, we could not, quite frankly, understand it 
nor could miners. During those exchanges, we were told that 
under this formula, the mine operator could make a request to 
MSHA, which there is provisions in the rule to carry out what I 
am talking about, to have the dust levels increased in their 
mine when they would claim that they believed that they could 
not control the dust with environmental controls, that there 
was not any feasible controls to do that, and at which time the 
agency would then review the approval request which would in 
place of--and you can call it substitute or supplement. I do 
not care what you call it. It is the same thing--instead of 
using engineering controls, environmental controls, could use 
respirators to allow those dust levels to rise.
    I would just like to take a second, if I could, to read a 
part of the public record. This was an exchange that took place 
between myself and some MSHA officials during the Washington 
hearing, which was a follow-up to try to clarify this issue 
from what the agency had already told us.

    Mr. Main, which is myself. Okay, in this mine that I talked 
about, let's say that you have this factor of 4. You're adding 
mine environment measurement the same way we do now, reading 8 
milligrams.
    Mr. Nichols, who was the head of the hearing. Let me deal 
with that 8 milligrams. Did you tell Joe that mine operators 
could go to 8 milligrams?
    Mr. Thaxton, who was one of the framers of the regulations 
at the hearing. He worked for MSHA. What we talked about, Joe, 
is that there is no 8 milligrams actually specified in the 
rule.
    Mr. Main. That's right.
    Mr. Thaxton. We said it's a protection factor that could be 
assigned, theoretically allow somebody to go up to a maximum of 
8 milligrams.
    Mr. Main. When I asked you the specific question, Bob, 
okay, how much dust--when you do that formula, that factor of 
4, how much dust would you be actually measuring?
    Mr. Thaxton. That's why I said----
    Mr. Main. It could go up to what?
    Mr. Thaxton. It could go up to a maximum of 8 milligrams.

    As we went on through the testimony----
    Senator Specter. Mr. Main, is that your concern, that it 
could go up to 8 milligrams?
    Mr. Main. Well, our concern basically is this is a starting 
point. Congress was right when it said the maximum dust levels 
should not exceed 2 milligrams. Congress was right when they 
said you have got to control that through environmental 
measures. You cannot use respirators as a replacement, 
substitute, or whatever else you want to now call it, to 
achieve that goal.
    Our fear is what this rule does is allows operators to 
basically substitute engineering controls with respirators and 
increase dust levels.
    Senator Specter. Is it your concern that if there were 8 
milligrams, that the respirators would reduce the exposure to 2 
milligrams and you object to the use of the respirators?
    Mr. Main. We object to the use to deal with dust by 
throwing respirators on miners and increasing the dust I think 
is about the short message. And I would also point out that the 
particular respirator--there is a wealth of information that 
shows that this particular one, although it could provide some 
benefit at low dose levels, is faulty and it has been found----
    Senator Specter. So you think that this respirator will not 
keep the inhalable dust to the 2 milligram level.
    Mr. Main. Yes, I believe that that is the case.
    Senator Specter. Mr. Lauriski, do you think that is a valid 
concern?
    Mr. Lauriski. No, I do not, Senator.
    Senator Specter. Why not?
    Mr. Lauriski. I think that all the tests that have been 
conducted on these devices--they have been used in this country 
since about 1980. There have been numerous studies and tests 
done on these. There are actually protection factors assigned 
by scientific institutions that in some instances in mines, 
these devices can provide as high as 94 percent efficiency.
    Senator Specter. Well, let us come back to the reason you 
suspended the rule.
    Mr. Lauriski. Okay.
    Senator Specter. Why did you suspend the rule?
    Mr. Lauriski. So that we would have the ability to test 
these personal dust monitors that we all agree have some 
extremely valuable benefit and give us time to see how these 
devices can best be used in a regulatory scheme. That would 
give us valuable information to understand how we should 
proceed with this proposed rulemaking.
    Senator Specter. Mr. Beerbower, what is your view on this? 
Do you think that these respirators provide the protection to 
keep the dust below the 2 milligrams required by law?
    Mr. Beerbower. Senator, we have long encouraged our miners 
to wear these devices. I do believe that they do provide a 
protection factor for miners exposed at any level of dust. I 
think one of the reasons that the questions have been raised 
about it is because when we look at the PDM and the 
capabilities that it has, it is completely different in the way 
that mines would approach dust control. In essence, the rules 
were written based on the old method of sampling. In other 
words, we would take a sample at the face. We would wait 2 to 3 
weeks to get the results back from the MSHA laboratory. Those 
results would be posted on the mine board, but where we were 
mining at the time that sample was taken is long gone, and we 
did not have the ability to take action to stop those immediate 
over-exposures. However, with the PDM, we will know exactly 
what they are exposed to at any time during the shift and be 
able to take actions to stop that over-exposure.
    Senator Specter. Mr. Lauriski, there would be a resolution 
of the issue if instead of suspending, you withdrew the rule. 
What is the difference, as you see it, between those two 
courses of action?
    Mr. Lauriski. Well, withdrawing the rule, Senator, would 
really take all of the work that has gone on since about 1995-
1996 in developing the proposed rules as they are today, first 
starting with the Dust Advisory Committee back in the mid-
1990's, then the development of these proposed rules by the 
previous administration, and then the work that we have done 
since I have been here since 2001. We think that by withdrawing 
those rules, that that would be a step backwards. We think 
preserving the record is very important.
    Perhaps more importantly than that, Senator, is that by 
keeping these rules open, we can take the information that we 
gain from the additional testing of these PDM's and we can 
incorporate that information into the public comment record. It 
is important that we do that and that we have a full 
representation of what goes on. That includes a collaboration 
with all of the parties who have the same interests and share 
the same interest in the use of these devices as us.
    The other concern that we have is that if you withdraw 
these rules and you continue to work on the PDM, what happens 
theoretically if these PDM's do not function. Then you have a 
withdrawn rule and you start all over again. Now, the 
development of these is going to take some time yet.
    Senator Specter. Well, if the personal dust monitors do not 
function, then they are unsatisfactory to keep the dust at a 2 
milligram level.
    Mr. Lauriski. Well, they only measure the dust, Senator. 
They do not provide any protection factors. They measure the 
exposure level that the miner sees. They do not provide that 
protection.
    Senator Specter. That is what the controversy is now on the 
personal dust monitors, whether they ought to be used. Right?
    Mr. Lauriski. No. I think we all agree. I think all of this 
table agree that this is the device that holds a lot of 
promise. I think the controversy comes with these devices that 
are on my right.
    Senator Specter. With the powered air purified respirators?
    Mr. Lauriski. That is correct.
    Senator Specter. Well, what is your view there, Mr. Main?
    Mr. Main. Well, on the respirators, miners need respirators 
to be used the way that Congress intended and that is when a 
mine operator gets out of compliance and until they get their 
mine back in compliance by the law and get the engineering 
standards in place, which they are under violation in that time 
frame, they have to have a quality respirator.
    Senator Specter. But only when the mine is out of 
compliance?
    Mr. Main. Basically under the law, if they are in risky 
dust areas, higher dust areas, they have to be provided a 
respirator. We think that is the proper way and to keep the law 
in place that requires the operator to put the engineering 
controls in place to get there.
    Now, with regard to the personal dust samplers, we believe 
that it will revolutionize the way that we do the dust sampling 
program in that it will let, as Dave Beerbower stated earlier, 
miners wear these every day, every shift. It is a remarkable 
device. I had it on. It gives you an instantaneous notice of 
dust levels increasing, lets you make automatic changes in the 
dust controls.
    The problem here is that the rules that is on the table--
and there is a list of them further than what I have laid out 
here today that is very problematic, that are contrary to the 
Mine Act. They eliminate, for example, compliance sampling. 
There is no compliance sampling for sections and outby areas 
left in the standards under those proposals, and they would be 
reduced, even with what the Government says they are going to 
do, by around 90 percent.
    Example. One shift to be sampled in the outby areas of a 
coal mine a year and as little as three on an operational 
section. That is just outrageous.
    The problem we have here is we cannot get our attention 
fully focused to craft this new rule because we cannot get the 
old rule off the table, and miners are fearful that this 
Government is going to move forward and keep those ill-advised, 
what we consider illegal provisions and put those in a final 
rule. We believe there has to be a new proposal any way that 
you do this. This rule is so bad, it needs to be taken off the 
table. But if we are going to do the kind of things we are 
talking about, it takes rule changes to do that anyway. And our 
fear is why is MSHA to reluctant to pull this thing off the 
table unless they plan to use those pieces.
    Senator Specter. Well, why can you not do the things, as 
you put it, the things you are talking about, in the interim 
when the rule is suspended until a revised rule is put into 
effect?
    Mr. Main. Well, I think the simple problem here is that the 
rule was wrongly crafted and the intent I think of the 
rulemaking process is to give the public a view of the rule 
that they intend to put in final stages. What we are talking 
about would accomplish that, to give us a look at a proposal 
and respond to that proposal that mirrors what the final rule 
would be. The problem is what is on the table is they contain 
so many adverse pieces that are sitting there, poised to be 
tucked into any final rule, and we would all be left to 
challenge it only through the courts.
    Senator Specter. Mr. Beerbower, would you care to comment 
about the disagreements here between Mr. Lauriski and Mr. Main?
    Mr. Beerbower. Yes, sir. I think the rules proposed in 
March are unacceptable to the industry also. We believe that 
they will require major revision. The role of the PDM was not 
anticipated to be what we now believe it can be, and therefore 
that section is going to have to receive a major rewrite. I am 
not an expert on the rulemaking process and we leave that up to 
the agency to determine whether they can work those changes 
into the current record or whether they need to repropose, but 
there are major changes that need to be made.
    Senator Specter. Do you think it makes any difference 
whether the rule is withdrawn or whether it is suspended and 
then reinstated with changes?
    Mr. Beerbower. Our concern is the time frame that we are 
talking about. If suspension would precipitate a quicker rule 
that we could work with on the PDM, then we are in favor of 
that. If reproposing would slow the process down, that would be 
a detriment to the miners.
    Senator Specter. Well, you are saying if it takes longer, 
you would not like it, but would it take longer?
    Mr. Beerbower. I do not know. I really do not know the 
answer to that question.
    Senator Specter. That is what I am trying to find out. If 
you do not know the answer, who does?
    Mr. Lauriski. I can answer that, Senator.
    Senator Specter. Go ahead.
    Mr. Lauriski. It would take us longer. If we withdraw this 
rule, we then lose all of the information that we have 
gathered, that this agency has gathered for the past 8, 9, 10 
years and we would----
    Senator Specter. Well, Mr. Lauriski, why is that? You have 
gathered that information over 8, 9, 10 years, as you say, and 
then you put a rule into effect in the year 2000. So all the 
information you had gathered prior to the time you put the rule 
into effect in the year 2000 you could use.
    Mr. Lauriski. The rule is not effective. It is simply 
proposed. And we have the record that has been established over 
these many years that sits there that we can preserve.
    Senator Specter. But there is nothing to stop you from 
reintroducing that record, incorporating it by reference, 
putting it back into a proceeding.
    Mr. Lauriski. You can, but then you go through the process 
of having to start all of the public processes over again.
    The other thing, Senator, that I think----
    Senator Specter. What public processes?
    Mr. Lauriski. Through the Administrative Procedure Act, the 
rulemaking act.
    But if I might----
    Senator Specter. Well, how long does that take?
    Mr. Lauriski. Well, to develop a rule? If I were to sit 
here and be optimistic, 18 to 24 months to develop a rule from 
the beginning to the end.
    Now, we have a rulemaking record developed. We have the 
comments that are going to be preserved, but I think what is 
important here is that by keeping this record open, we take the 
information that we are going to learn from the testing of 
these devices right here and we can fold that into the 
rulemaking record itself. That will give us the ability very 
quickly to make decisions on how best to use these devices in a 
regulatory scheme. Certainly if that does require a major 
revision to the current proposed rule, that part of the 
proposed rule would have to be reproposed. There is no question 
about that.
    Mr. Main. Mr. Chairman, if I may. I think I may have a 
solution to the problem.
    Senator Specter. Go ahead, Mr. Main.
    Mr. Main. I thank you, sir.
    In 2003, what the agency did was basically withdrew the 
2000 rule and reproposed a new rule, and we are asking for 
nothing different than that. We do not care what you call it. 
Okay? And if we could get a guarantee from the Secretary of 
Labor's folks from MSHA that they will actually repropose a 
rule that lets us look at what the actual rule will be before 
we make the final decision, I think that would solve the 
problem.
    Senator Specter. Would you do that, Mr. Lauriski?
    Mr. Lauriski. It is going to depend on the comments that we 
receive, and if those comments are valid and it changes the 
proposal substantially, we have a legal obligation to repropose 
those rules. That is correct.
    Senator Specter. What Mr. Main has just asked you is 
assurances that they would have an opportunity to have input on 
what you have proposed. Is that right, Mr. Main?
    Mr. Main. To have a review of the proposed rule once it 
comes out through its normal process.
    Senator Specter. That you would have an opportunity to 
comment and have input, make suggestions before it was 
finalized?
    Mr. Main. Similar to the process we just used. The legal 
process in which they would actually just issue a reproposal 
like they just did in March and----
    Senator Specter. Would you agree to that, Mr. Lauriski?
    Mr. Lauriski. Senator, if the information tells us that we 
have a better way to approach these rules and we modify the 
proposed rules in any way that substantially changes what we 
have proposed, then the answer is yes. Then we have to 
repropose those rules and then Mr. Main and all the miners and 
everybody else has an opportunity to comment on those before 
they become final.
    Senator Specter. All right. I think we may be coming to 
closure here. Let us see if we can work that out. I do not 
think we are too far apart.
    Mr. Main. One final comment.
    Senator Specter. We are pretty close, Mr. Main. You want to 
say something more?
    Mr. Main. Just one thing. If the rule is not reproposed, we 
would urge this committee to act to withdraw----
    Senator Specter. You better finish this before Senator 
Harkin gets here or starts to participate. Who knows what will 
happen then.
    They do not have too many coal mines in Iowa, do they, 
Senator Harkin? I withdraw the question. Go ahead, Mr. Main.
    Senator Harkin. Just a second.
    I want the record to show that at one time Iowa was one of 
the major coal-producing States in this Nation, more than 
Pennsylvania. As a matter of fact----
    Senator Specter. You may want the record to show that, but 
are those facts?
    Senator Harkin. It is factual. As a matter of fact, I win a 
lot of free beers at bars by asking people where the great coal 
mine leader, John L. Lewis, came from. Do you know, Mr. Main?
    Mr. Main. Iowa.
    Senator Harkin. Thank you very much. You win.
    Most people think he came from West Virginia or 
Pennsylvania.
    Senator Specter. That is certainly relevant to what State 
produces all the coal.
    Mr. Main, you have the final word.
    Mr. Main. Yes. I appreciate that, Senator. I would say 
this. What miners in this country want is assurances that they 
are going to see another proposal. Short of that, if the 
Government does not provide that, we would urge this body to 
act to withdraw, in any way they can, the rule that is on the 
table and direct the agency, in any way they can, to issue a 
rule that meets the needs of the Nation's miners. Thank you.
    Senator Specter. Well, I think we are really not too far 
apart, and I am hopeful we can move it together.
    Senator Byrd could not be here, and he has asked me to put 
these questions to you for response in the record. We will be 
asking more questions for the record.
    I want to go back to the Quecreek hearings which we held 
last October just for a moment, Mr. Lauriski, to ask you when 
you are going to release your investigative report on the 
incident, since it has been more than a year since the mine 
disaster at Quecreek and about 10 months since we had the 
hearings last October.
    Mr. Lauriski. Senator, I am not sure if you know this, but 
we were asked by the U.S. attorney who you asked to investigate 
the matters at Quecreek to withhold the release of our report 
while they concluded their work. They have now given us the 
green light.
    Senator Specter. When did they give you the green light?
    Mr. Lauriski. About 2 weeks ago.
    Senator Specter. When will we have your report?
    Mr. Lauriski. It is almost on your doorstep. We are making 
a very small, minor modification to that report, and we would 
hope--it is imminent.
    Senator Specter. Within the next week?
    Mr. Lauriski. I would hope within the next 2 weeks.
    Senator Specter. Thank you very much.
    Senator Harkin, do you care to ask anything here?
    Senator Harkin. No.
    Senator Specter. Well, I am hopeful that we can bring the 
parties together here. There was action taken in the House to 
prohibit any funds from being expended by the Department of 
Labor on this subject and it was a 2-vote margin, 212 to 210, 
and I thought our subcommittee ought to take a look at it. We 
are optimistic about having the Labor-HHS Appropriations bill 
on the floor starting on September 2, the day we get back, and 
we wanted to be more knowledgeable on the subject. After 
hearing the testimony, I am not sure we have accomplished our 
mission, but we do not know any less than we did when we 
started. It is fairly technical, but I repeat, I hope we can 
work it out so that there is agreement between the parties.

                     ADDITIONAL COMMITTEE QUESTIONS

    There will be some additional questions which will be 
submitted for your response in the record.
    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
             Questions Submitted by Senator Robert C. Byrd

                  MSHA'S PROPOSED RESPIRABLE DUST RULE

    Question. Mr. Lauriski, it has been 32 days since I wrote to you 
about MSHA's proposed respirable dust rule, and I have yet to receive a 
response. That leaves me with a poor impression about how MSHA views 
its role in communicating with the miners and their representatives in 
the Congress.
    I urge you to withdraw this seriously flawed rule. It is only one 
in a series of proposals by this Administration that have eroded the 
trust of miners in the one agency of the federal government charged 
with protecting their health and safety.
    Last Saturday, a 27-year-old worker was electrocuted in a Raleigh 
County coal mine, the sixth West Virginia coal miner to die on the job 
so far this year. While MSHA touts its safety record, it is ignoring a 
series of accidents and near-fatalities that are occurring in Alabama, 
Kentucky, Illinois, and Pennsylvania. This year's national fatality 
rate is already well above where it was at this time last year.
    And, yet, astonishingly, MSHA supports a $5 million cut in its own 
coal enforcement budget, as proposed by the President, when it already 
lacks the resources it needs to properly inspect our nation's mines. 
And now MSHA refuses to withdraw its coal dust rule which has 
undermined its credibility with miners even further.
    Mr. Lauriski, what does this Administration think it is gaining by 
promoting policies that risk the lives of America's miners?
    Answer. Please accept my apology for the delay in responding to 
your June 25, 2003 letter concerning the respirable dust proposed 
rules.\1\
---------------------------------------------------------------------------
    \1\ MSHA responded to your June 25 letter on August 13, 2003.
---------------------------------------------------------------------------
    During the six public hearings we held on the proposed respirable 
dust rules in May of this year, MSHA learned of the promise shown in 
the initial testing by NIOSH of the prototype Personal Dust Monitor 
(PDM) and its possible use to assist in the elimination of black lung 
disease. A PDM is designed to produce a real-time read-out of dust 
exposure. As a result, on June 24, I announced MSHA would stop all work 
on finalizing the proposed rules. We have extended the comment period 
on the proposals indefinitely so that the results of the current in-
mine testing of the experimental prototype PDMs will become a part of 
the public record.
    MSHA is working with the National Institute for Occupational Safety 
and Health (NIOSH) to complete the in-mine tests of the prototype PDMs 
in mines located in Pennsylvania, West Virginia, Alabama and Utah. If 
these initial tests are successful, MSHA and NIOSH will purchase 
production prototype models of the unit for further testing. As we 
proceed with the testing, we believe it is essential to leave the 
current rulemaking record intact and that we add to it the results of 
the PDM testing so we can determine how the PDMs might fit into a 
regulatory scheme.\2\
---------------------------------------------------------------------------
    \2\ Subsequent to the hearing, MSHA convened a meeting of 
stakeholders in order to provide a forum for obtaining and exchanging 
information about the direction of future research on the PDM. At the 
August 5, 2003 meeting, staff from NIOSH and the manufacturer of the 
device reported that the device performed successfully during the 
initial in-mine tests. Consequently, MSHA and NIOSH each committed 
$150,000 to purchase production prototype PDMs. These devices are 
scheduled for delivery in May 2004.
---------------------------------------------------------------------------
    As we work to improve miners' health, we are also emphasizing 
miners' safety. Any illness or injury is one too many. A great number 
of MSHA employees have worked in mines for many years and feel a deep 
sense of loss when accidents occur that cause injury, illness or death. 
As you know, our staff conducts detailed formal investigations of each 
fatal accident in an effort to prevent a recurrence. They study the 
scene of the accident, review records at the mine, conduct various 
tests, as needed, and interview people who may be able to help put 
together a complete picture of how the accident occurred. We then 
prepare a report of our findings and share it with the mining industry 
across the country to prevent similar accidents in the future.
    Accidents, whether fatal or non-fatal, present learning 
opportunities. MSHA defines an accident to include not only incidents 
that produce injuries, illnesses or deaths, but other unplanned 
incidents not resulting in personal harm, such as mine fires, 
entrapments, inundations, ignitions, and roof falls. Mine operators 
must report these incidents immediately and MSHA investigates many of 
them to learn how and why the event occurred. MSHA may use the lessons 
learned to develop hazard alerts or other educational materials for 
distribution and discussion at mines to prevent similar future 
accidents.
    MSHA certainly is not ignoring accidents. While the number of 
fatalities at coal mines is higher than it was last year at this time, 
it remains lower than at this time in 1999. We have increased our 
efforts to reduce serious accidents and to raise the mining community's 
awareness of recent accident trends and related potential hazards. MSHA 
is:
  --Finalizing an Emergency Temporary Standard (ETS) to protect 
        underground coal miners from grave dangers such as mine fires, 
        explosions, and gas or water inundation emergencies. The recent 
        deaths of 14 miners at two underground coal mines demonstrate 
        the need for this standard, and it is only the second ETS 
        issued under the Mine Act. The Emergency Evacuation Standard 
        assures that proper training and mine emergency evacuation 
        procedures are in place.
  --Taking action to alert the mining industry of the inundation hazard 
        such as that which caused the entrapment of nine miners at the 
        Quecreek Mine. After fully investigating the cause of that 
        accident, MSHA reviewed plans of underground mines operating 
        near abandoned works, and worked with mine operators to provide 
        additional protective measures where needed. MSHA is working to 
        improve the availability and accuracy of mine maps with 
        improved technology.
  --Operating a Tri-State Initiative group that focuses on the 
        geographic area which historically has accounted for a large 
        number of mining fatalities, i.e., Virginia, West Virginia and 
        Kentucky.
  --Providing special emphasis on assistance to small operations that 
        may not have the technical and safety resources of larger 
        operations through a new Office of Small Mines Safety and 
        Health Compliance Assistance.
  --Conducting special emphasis initiatives in which all available 
        personnel contact miners and mine operators to reduce accidents 
        and injuries.
  --Issuing hazard alerts and other materials designed to focus the 
        attention of miners and operators on current trends and 
        occurrences through expanded distribution channels.
  --Investigating and providing information on ``near misses'' and how 
        to prevent them.
  --Expanding the safety information and materials available on the 
        website. These materials can be used by operators and miners in 
        safety meetings and training sessions to improve the safety 
        environment at the mine.
  --Continuing to conduct inspections mandated by the Mine Safety and 
        Health Act of 1977. In 2002, our rate of completion of 
        mandatory inspections was at the highest level in several 
        years.
    In addition, MSHA has updated and reissued policies and procedures 
that were identified internally as needing improvement. It is to MSHA's 
credit that accident follow-up activities result in local or national 
improvements as they may be appropriate.
    Most recently, MSHA has initiated a nationwide outreach program 
designed to raise the awareness of accident causation and prevention 
among the miners, and to encourage all employees of mining companies 
and contractors to identify hazards and use safe job procedures. MSHA 
is using all available staff, including education and training 
specialists and technical experts, as well as enforcement personnel, to 
conduct these contacts at our nation's coal mines. The major two-week 
initiative began on Monday, July 28, 2003, and will include on-site 
visits to every surface and underground mine in the nation.
    MSHA will not reduce its enforcement efforts in fiscal year 2004. 
The President's budget request does not propose a decrease in inspector 
positions below the fiscal year 2003 enacted level. While the fiscal 
year 2004 budget request for the Coal activity is $5 million less than 
the fiscal year 2003 enacted level, this decrease is the result of the 
transfer of 19 information technology FTE to a newly created budget 
activity that will consolidate MSHA's information technology resources. 
In previous budgets, the cross-cutting services provided by the 
Directorate of Program Evaluation and Information Resources were funded 
by drawing resources from each of the budget activities. There is no 
effect on the Coal program enforcement or any of its activities.

                NATIONAL MINE HEALTH AND SAFETY ACADEMY

    Question. Mr. Lauriski, I wrote a letter to you last month, to 
which I still have not received a response, about Jack Spadaro, 
Superintendent of the National Mine Health and Safety Academy in 
Beckley, West Virginia, who was placed on administrative leave by the 
Mine Safety and Health Administration (MSHA) last Spring.
    I have no personal knowledge of the circumstances of his 
suspension. But, The Courier-Journal of Louisville, Kentucky, and other 
publications have speculated that Mr. Spadaro's suspension may have 
been retaliatory. Mr. Spadaro has been a regular critic of MSHA. He has 
earned a reputation as a whistle blower.
    The Washington Post this week reported that hundreds of whistle 
blower complaints about waste, fraud, and abuse in this Administration 
are going unexamined, with the backlog of cases more than doubling in 
the past 18 months.
    Mr. Lauriski, this Administration is swiftly developing a bad 
reputation for its treatment of federal employees who tell the truth 
about questionable practices in their agencies. The treatment of Mr. 
Spadaro's case has only contributed to the growing sense among many 
miners and MSHA employees that the agency is interested in protecting 
something other than the health and safety of miners. And the failure 
to respond to the letters of Members of Congress only makes matters 
worse.
    Can you explain to this Subcommittee exactly what your priorities 
are at MSHA because, frankly, it doesn't seem to be the health and 
safety of miners.
    Answer. I responded to your letter on July 21. As I stated in the 
letter, Mr. Spadaro was placed on administrative leave with pay on June 
4, 2003. Because this is a personnel matter, it would be inappropriate 
for me to provide any additional information about Mr. Spadaro at this 
time.
    My priority is the health and safety of miners. My goal is to see 
the mining industry in this country achieve new levels in health 
protection for miners just as it has broken all records in safety. 
After several years of relative stagnation, the number of mine 
fatalities dropped to a new record-low of 72 in 2001 and then to 67 
last year. This amounts to a 21 percent decrease in fatalities from the 
period 2000 to 2002 at all mines. Injuries also are on the decline and 
for the same period, total injuries at all mines have decreased 18 
percent. Additionally, total inspections, investigations and site 
visits increased from 61,094 in 2000 to 87,957 in 2002.
    I have put into place a system that promotes safety as a value. 
After arriving at MSHA, I developed a management plan to guide the 
Agency in a new proactive direction that makes sure we get maximum 
benefit from our resources. As we have implemented the plan, we have 
set specific goals to reduce injuries and illnesses and have 
experienced the results I just cited. We have enhanced training and 
education for both our own staff and for miners and mine operators and 
compliance assistance is now a part of everything we do. It is through 
programs such as these that we will see fewer injuries and illnesses.
    I am committed to improving the health and safety of our nation's 
miners. When I accepted this position, I pledged to uphold the law 
protecting miners. I have done so and I will continue to do so.

                         CONCLUSION OF HEARING

    Senator Specter. Thank you all very much for being here. 
That concludes our hearing.
    [Whereupon, at 3:02 p.m., Thursday, July 31, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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