U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

35–186 PDF 2007

EVALUATING THE EFFECTIVENESS OF MSHA’S

MINE SAFETY AND HEALTH PROGRAMS

HEARING

BEFORE THE

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, MAY 16, 2007

Serial No. 110–38

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

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

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

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

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

(III)

C O N T E N T S 

Page

Hearing held on May 16, 2007 ............................................................................... 1

Statement of Members: 

Altmire, Hon. Jason, a Representative in Congress from the State of 

Pennsylvania, prepared statement of .......................................................... 87

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

of West Virginia ............................................................................................ 9

Prepared statement of ............................................................................... 11

McKeon, Hon. Howard P. ‘‘Buck,’’ Senior Republican Member, Committee 

on Education and Labor ............................................................................... 3

Prepared statement of ............................................................................... 5

Miller, Hon. George, Chairman, Committee on Education and Labor ......... 1

Prepared statement of ............................................................................... 3

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

of West Virginia ............................................................................................ 6

Prepared statement of ............................................................................... 8

Statement of Witnesses: 

Bertoni, Dan, Director, Education, Workforce and Income Security Team, 

Government Accountability Office ............................................................... 13

Prepared statement of ............................................................................... 16

Grayson, R. Larry, Union Pacific/Rocky Mountain Energy Professor of 

Mining and Director, Western U.S. Mining Safety & Health Training 

and Translation Center ................................................................................ 48

Prepared statement of ............................................................................... 50

McAteer, J. Davitt, vice president, Wheeling Jesuit University .................. 53

Prepared statement of ............................................................................... 55

Attachment 1: List of rules withdrawn by MSHA .................................. 88

Attachment 2: Sago Mine investigation memorandum for the file 

(July 2006) .............................................................................................. 94

Internet address to the Aracoma Alma Mine report .............................. 100

Internet address to the Sago Mine Disaster report ................................ 100

Snare, Jonathan L., Acting Solicitor, U.S. Department of Labor ................. 44

Prepared statement of ............................................................................... 46

Stickler, Hon. Richard E., Assistant Secretary of Labor, Mine Safety 

and Health Administration .......................................................................... 37

Prepared statement of ............................................................................... 38

Responses to questions posed by Mr. Davis of Tennessee and Mr. 

Kucinich .................................................................................................. 84

(1)

EVALUATING THE EFFECTIVENESS OF MSHA’S

MINE SAFETY AND HEALTH PROGRAMS 

Wednesday, May 16, 2007

U.S. House of Representatives 

Committee on Education and Labor 

Washington, DC

The committee met, pursuant to call, at 10:33 a.m., in Room 

2175, Rayburn House Office Building, Hon. George Miller [chairman of the committee] presiding. 

Present: Representatives Miller, Kildee, Payne, Woolsey, McCarthy, Kucinich, Wu, Bishop of New York, Sarbanes, Yarmuth, Hare, 

Clarke, McKeon, Wilson, Kline, Price of Georgia, Kuhl, Davis of 

Tennessee and Walberg. 

Staff Present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jordan Barab, Health/Safety Professional; Jody 

Calemine, Labor Policy Deputy Director; Lynn Dondis, Policy Advisor for Subcommittee on Workforce Protections; Michael Gaffin, 

Staff Assistant, Labor; Peter Galvin, Senior Labor Policy Advisor; 

Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, General 

Counsel; Thomas Kiley, Communications Director; Rachel Racusen, 

Deputy Communications Director; Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff Director; Robert Borden, Minority General Counsel; Steve Forde, Minority Communications Director; Ed Gilroy, Minority Director of Workforce Policy; Rob Gregg, 

Minority Legislative Assistant; Richard Hoar, Minority Professional 

Staff Member; Victor Klatt, Minority Staff Director; Jim Paretti, 

Minority Workforce Policy Counsel; Molly McLaughlin Salmi, Minority Deputy Director of Workforce Policy; Linda Stevens, Minority Chief Clerk/Assistant to the General Counsel; and Loren 

Sweatt, Minority Professional Staff Member. 

Chairman MILLER. The Committee on Education and Labor will 

come to order for the purpose of evaluating the effectiveness of 

MSHA’s mine safety and health programs. 

At the hearing on March 28, this committee heard some very 

strong criticisms of the U.S. Department of Labor and its Mine 

Safety and Health Administration. We heard from those directly 

impacted by MSHA’s work that, despite its sweeping authority, the 

agency moves at a glacial pace and often simply fails outright to 

enact meaningful and effective safety standards. 

Debbie Hamner spoke of her husband, Junior, who was killed in 

the Sago mine. She said: ‘‘If I knew then what I knew today, I 

would have begged my husband not to work at Sago * * * ConVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
2

gress mandated explosive-proof seals, and yet MSHA approved the 

use of omega blocks at Sago * * * MSHA approved the ventilation 

system at Sago that did not push the air away from the seals. 

Therefore, when our miners tried to escape * * * they could not.’’

Scott Howard a miner told us that, in his 28 years experience in 

the mines, he hadn’t seen any evidence it was safer, despite the 

more robust laws passed by Congress. He said: ‘‘Outside [of the 

mine], safety is first. When you go underground, coal is all that 

matters.’’

It is obvious from the hearings that MSHA must regain the trust 

of the people who rely on the agency every day, miners and their 

families. It appears that MSHA is not acting quickly enough to implement the Mine Improvement and New Emergency Response Act 

that Congress passed last year. In today’s hearing, we intend to examine why this is the case. 

In many ways, it seems that MSHA has chosen to move at a 

snail’s pace when it could be acting far more aggressively. For example, MSHA has yet to require mine operators to install emergency rescue shelters in all underground mines. Just an hour ago, 

I toured one of these shelters right here on the grounds of the U.S. 

Capitol. The shelter can safely hold 35 miners for up to 96 hours 

with breathable air, potable water and food. 

The shelter I toured was one of a half dozen such shelters which 

the State of West Virginia has approved as safe for underground 

coal mines. The National Institute for Occupational Safety and 

Health has advised us that they consider these shelters safe and 

have no plans to ask West Virginia to stop the deployment, to alter 

their requirement. 

If these shelters can help the miners of West Virginia, then they 

can help the miners in Kentucky, Illinois and Alabama or any 

other mining State. These shelters are just an example of how the 

States have acted more swiftly than MSHA to improve the mine 

safety. 

Congress established MSHA to protect the safety and health of 

miners. Congress gave the agency a lot of discretion to do that, and 

the courts have upheld that discretion time and again. Yet, under 

the current administration, we see we have plenty of examples 

where MSHA has not used its authority to aggressively protect 

miners. 

It is clear that MSHA sometimes needs a push from Congress. 

Last year’s MINER Act was such a push. It did not address all of 

the lessons we learned and continue to learn from the tragedies at 

Sago, Aracoma Alma and Darby, but it was a push in the right direction. 

In today’s hearing, we want to hear about the progress MSHA 

is making to implement that act of Congress, whether MSHA is 

being sufficiently pro-active in improving mine safety even beyond 

the MINER Act, and what tools MSHA may need to further carry 

out its mission to properly regulate and enforce the law. I look forward to these hearings and hearing that testimony. 

At this time, I would like to recognize Congressman McKeon, the 

senior Republican on the committee. 

[The prepared statement of Mr. Miller follows:]

3

Prepared Statement of Hon. George Miller, Chairman, Committee on 

Education and Labor 

Good morning. 

At a hearing on March 28, this Committee heard some very strong criticism of 

the U.S. Department of Labor and its Mine Safety and Health Administration. We 

heard from those directly impacted by MSHA’s work that, despite its sweeping authority, the agency moves at a glacial pace—and often simply fails or outright refuses to enact meaningful and effective safety standards. 

Debbie Hamner spoke of her husband Junior, who was killed at the Sago mine: 

‘‘If I knew then what I know today, I would have begged my husband not to work 

at Sago.* * * Congress mandated explosion-proof seals, yet MSHA approved the use 

of omega blocks at Sago * * * MSHA approved a ventilation plan at Sago that did 

not push the air away from the seals. Therefore when our miners tried to escape 

* * * they could not.’’

Scott Howard, a miner, told us that in his 28-year experience in mines, he hasn’t 

seen any evidence that he is safer despite the more robust laws passed by Congress. 

He said: ‘‘Outside [of the mine], safety is first. When you go underground, coal is 

all that matters.’’

It is obvious from that hearing that MSHA must regain the trust of the people 

who rely on the agency every day—miners and their families. It appears that MSHA 

is not acting quickly enough to implement the Mine Improvement and New Emergency Response Act that Congress passed last year. In today’s hearing, we intend 

to examine why this is the case. 

In many ways, it seems that MSHA has chosen to move at a snail’s pace when 

it could be acting far more aggressively. 

For example, MSHA has yet to require mine operators to install emergency rescue 

shelters in all underground mines. Just an hour ago, I toured one of these shelters 

right here on the grounds of the U.S. Capitol. The shelter can safely hold 35 miners 

for up to 96 hours, with breathable air, potable water, and food. 

The shelter I toured is one of one a half dozen such shelters which the State of 

West Virginia has approved as safe for underground coal mines. The National Institute for Occupational Safety 

and Health (NIOSH) has advised us they also consider these shelters safe and 

have no plans to ask West Virginia to stop deployment or alter their requirements. 

If these shelters can help miners in West Virginia, then they can help miners in 

Kentucky, Illinois, Alabama, or any other mining state. These shelters are just one 

example of how states have acted more swiftly than has MSHA to improve mine 

safety. 

Congress established MSHA to protect the safety and health of miners. Congress 

gave the agency a lot of discretion to do that, and the courts have upheld that discretion time and again. 

Yet under the current Administration, we have seen plenty of examples where 

MSHA has not used its authority to aggressively protect miners. 

It’s clear that MSHA sometimes needs a push from Congress. Last year’s MINER 

Act was one such push. It did not address all of the lessons we learned and continue 

to learn from the tragedies at Sago, Aracoma Alma, and Darby. But it was a push 

in the right direction. 

In today’s hearing, we want to hear about the progress MSHA is making in implementing that Act of Congress, whether MSHA is being sufficiently pro-active in improving mine safety even beyond the MINER Act, and what tools MSHA may need 

to better carry out its mission to properly regulate and enforce the law. 

I look forward to hearing the testimony. 

Thank you. 

Mr. MCKEON. Thank you, Mr. Chairman; and thank you for convening this hearing. 

I welcome today’s witnesses and, in particular, Chairman Rahall 

and Congresswoman Capito for testifying and also for joining us 

shortly for our discussion with the other witnesses we will have before us. I welcome you both back to the committee room where you 

testified last year, along with your West Virginia colleague, Mr. 

Mollohan, and five other House Members, to provide feedback on 

the Federal response to last year’s mine tragedies, discussed mine 

4

safety technology and outlined incentive initiatives to improve the 

safety of U.S. mines. 

Notably, that hearing of our Workforce Protection Subcommittee 

was the only venue in Washington which all members of the West 

Virginia delegation provided official testimony, testimony that 

helped to trigger the most dramatic mine safety overhaul in decades. 

Congresswoman Capito, in the days following the Sago mine 

tragedy, you helped provide valuable leadership to move the investigative and legislative processes ahead. In particular, I commend 

your work with my former committee colleagues, Mr. Norwood and 

Mr. Boehner, for securing a Department of Labor decision to reverse its policy of denying all requests under the Freedom of Information Act for notes taken by Mine Safety and Health Administration inspectors during the on-site mine inspections until a case has 

been officially closed. 

This policy change provided valuable information to lawmakers, 

the news media and, most important of all, the families of mine 

workers. In fact, just a week ago, MSHA issued its final accident 

investigation report regarding the Sago disaster; and I would note 

that without the work of Congresswoman Capito none of the notes 

gathered by MSHA inspectors at that mine would have been available to the public until these past several days. 

Mr. Stickler, I also thank you for agreeing to testify this morning. I am particularly eager to hear your testimony and answers 

to this panel’s questions regarding MSHA’s recently completed investigation. 

In its report, your agency concludes that lightning running 

through a metal conduit in a sealed area of the mine served as the 

source of the blast, igniting methane gas which in turn blew out 

recently constructed omega block seals. I am hopeful we can have 

an honest and open-minded conversation about what led to these 

findings. Just as importantly, I am hopeful we can do so in a fair 

and straightforward manner. Part of improving practices both inside a mine and investigating incidents at a mine is learning from 

past mistakes, and I hope we will do just that. 

Mr. Stickler, I also look forward to hearing from you about your 

agency’s implementation of last year’s MINER Act. As I understand 

it, MSHA has met each of its congressionally mandated deadlines 

to implement the MINER Act; and, similarly, labor and industry 

leaders have been working in good faith to bolster mine safety 

through available and ever-changing technology. Just as my colleagues do, I am hopeful that this law can and will be implemented 

just as quickly as possible. 

Mr. Chairman, in addition to universal bipartisan support in the 

Senate, the MINER Act enjoyed strong support from the Mine 

Workers of America, the National Mining Association and a bipartisan group of House Members from key mining States. In the 

months ahead, just as we have demonstrated last year, I am convinced this committee will continue to track this issue closely and 

fairly with an eye toward all stakeholders. 

With that, I again thank our witnesses and look forward to this 

morning’s discussion. 

[The prepared statement of Mr. McKeon follows:]

5

Prepared Statement of Hon. Howard P. ‘‘Buck’’ McKeon, Senior Republican 

Member, Education and Labor Committee 

Mr. Chairman, thank you for convening this hearing. I welcome today’s witnesses, 

and in particular, I’d like to thank Congressman Rahall and Congresswoman Capito 

for testifying and also for joining us shortly for our discussion with the other witnesses we’ll have before us. I welcome you both back to our Committee room, where 

you testified last year—along with your West Virginia colleague, Mr. Mollohan—and 

five other House Members—to provide feedback on the federal response to last 

year’s mine tragedies, discuss mine safety technology, and outline initiatives to improve the safety of U.S. mines. Notably, that hearing of our Workforce Protections 

Subcommittee was the only venue in Washington at which all Members of the West 

Virginia delegation provided official testimony—testimony that helped to trigger the 

most dramatic mine safety overhaul in decades. 

Congresswoman Capito, in the days following the Sago Mine tragedy, you helped 

provide valuable leadership to move the investigative and legislative processes 

ahead. In particular, I commend your work with my former Committee colleagues, 

Mr. Norwood and Mr. Boehner, for securing a Department of Labor decision to reverse its policy of denying all requests under the Freedom of Information Act for 

notes taken by Mine Safety and Health Administration inspectors during on-site 

mine inspections until a case has been officially closed. This policy change provided 

valuable information to lawmakers, the news media, and—most important of all—

the families of mine workers. In fact, just a week ago, MSHA issued its final accident investigation report regarding the Sago disaster—and I would note that without the work of Congresswoman Capito, none of the notes gathered by MSHA inspectors at that mine would have been available to the public until these past several days. 

Mr. Stickler, I also thank you for agreeing to testify this morning. I am particularly eager to hear your testimony and answers to this panel’s questions regarding 

MSHA’s recently-completed investigation. In its report, your agency concludes that 

lightning running through a metal conduit in a sealed area of the mine served as 

the source of the blast, igniting methane gas which in turn blew out recently-constructed ‘‘omega block’’ seals. I am hopeful we can have an honest and open-minded 

conversation about what led to these findings. Just as importantly, I am hopeful we 

can do so in a fair and straightforward manner. Part of improving practices, both 

inside a mine and in investigating incidents at a mine, is learning from past mistakes. I hope we will do just that. 

Mr. Stickler, I also look forward to hearing from you about your agency’s implementation of last year’s MINER Act. As I understand it, MSHA has met each of 

its congressionally-mandated deadlines to implement the MINER Act, and similarly, 

labor and industry leaders have been working in good faith to bolster mine safety 

through available—and ever-changing—technology. Just as my colleagues do, I am 

hopeful that this law can and will be implemented just as quickly as possible. 

Mr. Chairman, in addition to universal, bipartisan support in the Senate, the 

MINER Act enjoyed strong support from: the United Mine Workers of America; the 

National Mining Association; and a bipartisan group of House Members from key 

mining states. In the months ahead, just as we demonstrated last year, I’m convinced this Committee will continue to track this issue closely and fairly—with an 

eye toward all stakeholders. With that, I again thank our witnesses and look forward to this morning’s discussion. 

Chairman MILLER. Thank you. 

Our first panel will be made up of Congressman Nick Rahall, 

who has been a member of the United States House of Representatives, representing West Virginia’s Third Congressional District, 

since 1977. He is currently the chairman of the House Resources 

Committee. And Congresswoman Shelley Moore Capito, representing West Virginia’s Second Congressional District since 2001. 

Welcome, both of you, to the committee. We look forward to your 

testimony; and we thank you for your leadership in the aftermath 

of these accidents and the leadership of your State, I think, in really showing the way to the rest of us and what can be done to improve the margins of safety for workers and for their families. 

6

You will both be invited to sit and participate in the hearing 

under the unanimous consent agreement. I know you have busy 

schedules, but as long as you can remain with us, you are more 

than welcome to stay and to participate. 

We will begin, Congressman Rahall, with you. 

STATEMENT OF THE HON. NICK RAHALL, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF WEST VIRGINIA 

Mr. RAHALL. Thank you, Mr. Chairman. I certainly appreciate 

your leadership in having this hearing today as well as that of the 

ranking member, Mr. McKeon; and I want to thank you for allowing me to testifyas well. 

I think it should be noted that there are members of victims’ 

families from the Sago mine with us today. We certainly commend 

Debbie Hamner and Sara Bailey for their courageous leadership. 

Every time there is a hearing or event here in our Nation’s capital, 

they are here to ensure that the loss of their loved ones was not 

in vain; and I salute their courage and tenacity. 

We are here in large part because of the sacrifices and losses of 

the coal miners in my district and across West Virginia and across 

our Nation. We are also here because of an unfortunate lack of 

oversight for too many years by the Congress, the people’s branch, 

the miners’ branch, if you will, of our Federal Government. 

The 1969 and 1977 acts provided the Secretary of Labor with 

vast authorities to protect the health and safety of our miners, including those we will be talking about today. But somewhere along 

the way, probably as it lumbered along under the control of too 

many managers who were beholding to the industry, the agency 

lost sight of its priorities. 

This committee, under your leadership, Chairman Miller, is helping to ensure that the Mine Safety and Health Administration remembers who its constituency really is; and I commend you, Mr. 

Chairman, and members of this committee for doing just that. 

In recent weeks, we have seen the release of three weighty reports that resulted from MSHA’s investigations into the disasters 

at Sago, Alma and Darby of last year. Each of these reports contains insight into how enforcement of the law proved inadequate 

and how an MSHA truly devoted to seeking better safety technology could have saved lives. 

Mr. Chairman, I am proud to be able to say that my home State 

of West Virginia has been a real leader in pushing for advances in 

the coal fields. The State of West Virginia is taking steps that will 

save lives and prevent harm to the health of those men and women 

who toil in an inherently dangerous industry that is critically important to America’s economic prosperity and our national security. 

It has moved ahead rapidly to improve more modern communications equipment in emergency shelters. 

MSHA could benefit from an injection of the sense of urgency 

that has taken hold in my State. Unfortunately, MSHA has not 

committed itself to any timeline that would mandate the use of refuge chambers which we did visit this morning together; and it refuses to reconsider its rules even temporarily governing the use of 

belt air ventilation, which is the subject of legislation that I have 

introduced, H.R. 576, that is pending before this committee. 

7

When it comes to introducing new technologies, coal miners will 

undoubtedly benefit from a deliberative, well-researched process. 

But it would be shameful if that process were used as an excuse 

for further delay and inaction. 

I said well before its passage that the MINER Act was a good, 

solid start; and I commend this committee and I commend the administration for signing the bill into law. It set deadlines and improvements in emergency breathing and communications, lifelines, 

seals and rescue teams. But, as I said then and will say again 

today, it is only the beginning. 

With the new funding that the Congress has provided to NIOSH 

to expedite improvements in safety technology—and I emphasize 

this point, Mr. Chairman—Federal research can produce emergency breathing and communications equipment and refuge chambers that go beyond anything that is being required in West Virginia today. But the new technologies approved in my State are an 

advanced generation that we all hope will spawn even greater advances in the years ahead. 

We should all view mine safety as an ever-changing, always improving progression. So while my State is pressing operators to invest millions to deploy specified technologies, it is also asking for 

assurances from MSHA that those investments are not being made 

in vain. 

We are anxious for MSHA to eventually catch up. We are as well 

hoping for cooperation so that when MSHA does catch up with its 

own regulations and technology approvals, good actors such as we 

have in West Virginia will not be penalized for acting sooner rather 

than later. 

Mr. Chairman, our responsibility today is oversight. The Congress must continue to demand an MSHA that does its job and 

does it aggressively; and when the cameras are turned off and the 

media attention goes elsewhere, the Congress must continue to demand that MSHA do its job. Neither MSHA nor the State of West 

Virginia nor those of us in the Congress concerned with miners’ 

health and safety can ever rest, consider the job done. 

Because the job will never be done. One-third of coal mines still 

do not have at least two SCSRs, self-rescuers, for every miner underground; truly wireless communications and tracking is still not 

available; emergency response plans are still not fully approved by 

MSHA; evacuation drills and training remain inadequate; pre-shift 

examinations are too often incomplete; and there are still too few 

mine rescue teams. 

What is MSHA doing to correct these inefficiencies and when will 

coal miners begin to see the difference underground? These are the 

questions that merit answers, and I am sure the committee will explore today. 

I thank you again, Mr. Chairman, for affording me this courtesy 

to appear before you. I commend you and members of this committee for your dedication to coal miners’ health and safety, and I 

look forward to finding the answers to questions and continuing to 

work together for the benefit of our miners and their families. 

Chairman MILLER. Thank you. 

[The statement of Mr. Rahall follows:]

8

Prepared Statement of Hon. Nick J. Rahall II, a Representative in Congress 

From the State of West Virginia 

I thank you, Mr. Chairman, for your courtesy in allowing me to testify before the 

Committee today. 

We are here—in large part—because of the sacrifices and losses of the coal miners 

in my district and across West Virginia. 

We are also here because of an unfortunate lack of oversight for too many years 

by the Congress—the people’s branch, the miners’ branch—of our federal government. 

The 1969 and 1977 Acts provided the Secretary of Labor with vast authorities to 

protect the health and safety of our miners—including those we will be talking 

about today. 

But somewhere along the way, probably as it lumbered along under the control 

of too many managers who were beholden to the industry, the agency lost sight of 

its priorities. 

This Committee is helping to ensure that the Mine Safety and Health Administration remembers who its constituency really is, and I commend you, Mr. Chairman, 

and the Members of this Committee for that. 

In recent weeks, we have seen the release of three weighty reports that resulted 

from MSHA’s investigations into the disasters at Sago, Alma, and Darby last year. 

Each of these reports contains insight into how enforcement of the law proved inadequate and how an MSHA truly devoted to seeking better safety technology could 

have saved lives. 

Mr. Chairman, I am proud to be able to say that my State has been a real leader 

in pushing for advances in the coalfields. 

The State of West Virginia is taking steps that will save lives and prevent harm 

to the health of those men and women who toil in an inherently dangerous industry 

that is critically important to America’s economic prosperity and national security. 

It has moved ahead rapidly to approve more modern communications equipment 

and emergency shelters. 

MSHA could benefit from an injection of the sense of urgency that has taken hold 

in my state. Unfortunately, MSHA has not committed itself to any timeline that 

would mandate the use of refuge chambers. 

And it refuses to reconsider its rules, even temporarily, governing the use of beltair ventilation ( which is the subject of legislation I introduced, H.R. 576, that is 

pending before this committee. 

When it comes to introducing new technologies, coal miners will undoubtedly benefit from a deliberative, well-researched process. 

But it would be shameful if that process were used as an excuse for further delay 

and inaction. 

I said well before its passage that the MINER Act was a good solid start. It set 

deadlines for improvements in emergency breathing and communications, lifelines, 

seals, and rescue teams. 

With the new funding that the Congress has provided to NIOSH to expedite improvements in safety technology—and I emphasize this point, Mr. Chairman—federal research can produce emergency breathing and communications equipment and 

refuge chambers that go beyond anything that is being required in West Virginia 

today. 

But the new technologies approved in my State are an advanced generation that 

we all hope will spawn even greater advances in the years ahead. We should all 

view mine safety as an ever-changing, always-improving progression. 

So while my state is pressing operators to invest millions to deploy specified technologies, it is also asking for assurances from MSHA that those investments are not 

being made in vain. 

We are anxious for MSHA to eventually catch up. We are, as well, hoping for cooperation so that when MSHA does catch up with its own regulations and technology approvals, good actors will not be penalized for acting sooner rather than 

later. 

Mr. Chairman, our responsibility today is oversight. The Congress must continue 

to demand that MSHA do its job, and that it do it aggressively. 

And when the cameras are turned off and the media attention goes elsewhere, the 

Congress must continue to demand that MSHA do its job. 

One-third of coal mines still do not have at least two SCSRs for every miner underground. 

Truly wireless communications and tracking is still not available. 

Emergency response plans are still not fully approved by MSHA. 

Evacuation drills and training remain inadequate. 

9

Pre-shift examinations are too often incomplete. 

There are still too few mine rescue teams. 

What is MSHA doing to correct these deficiencies, and when will coal miners 

begin to see the differences underground? 

These are the questions that merit answers. I thank you again, Mr. Chairman, 

for affording me this courtesy and I look forward to finding the answers to these 

questions and continuing to work together for the benefit of miners and their families. 

Chairman MILLER. Congresswoman Capito? 

STATEMENT OF THE HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

Mrs. CAPITO. Thank you, Chairman Miller, Ranking Member 

McKeon and members of the committee, for the opportunity to testify at the hearing on the effectiveness of MSHA’s mine safety and 

health programs. 

It has been 17 months since the devastating month of January, 

2006, that saw 16 miners die in West Virginia, including 12 at the 

Sago mine in my district. During this time, we have worked together, the congressional delegation, the committee and members 

from both sides of the aisle, to pass critical mine safety legislation 

and provide needed oversight to MSHA and NIOSH as they carry 

out their important responsibilities. 

It became clear immediately after Sago and Aracoma that many 

aspects of mine safety and emergency response were overlooked. 

The MINER Act addressed the obvious shortcomings in our response to accidents. I am pleased that MSHA has implemented 

emergency oxygen requirements pursuant to that Act that will ensure a 96-hour supply of emergency oxygen or its equivalent for all 

miners. Regulations for mine rescue teams should be completed 

this year. 

It is important that we monitor the work of MSHA, NIOSH and 

the required interagency working group on communications technology. Nearly a year has passed since the MINER Act’s passage, 

and we must continue to make progress and ensure that the deadline for implementing two-way communications devices is met, if 

not sooner, preferably sooner. 

I am very pleased, as Congressman Rahall said, that our State 

of West Virginia has been a national leader in terms of beginning 

the process of getting rescue shelters to our miners. In March of 

this year, the State approved five types of shelters for use in the 

State’s underground mines and gave mine operators until April 15 

to submit shelter plans to the Office of Miners’ Health, Safety and 

Training. 

Progress has been slower on the national level in terms of evaluating and approving these shelters. I understand the concern of 

some regarding blast standards for a secondary blast explosion and 

with respect to the chambers, but I also share MSHA’s belief expressed at hearings earlier this year—or last year—that evacuation 

must be the first option for miners in an emergency situation. 

Nonetheless, NIOSH and MSHA must speed up their process and 

ensure that miners across the country will have access to these lifesaving chambers as soon as possible. Again, it has been 17 months 

10

since Sago demonstrated that evacuation is not always possible. 

West Virginia has taken steps towards ensuring our miners will 

have access to these shelters; and the rest of the Nation should, 

too. 

Many of us pledged as we worked to pass the MINER Act we 

would return to address further regulations and legislation necessary to prevent future accidents following the completion of reports of Sago and Aracoma. This hearing is a step towards fulfilling 

that commitment, and thank you for this. 

There is much we can learn from the accident reports. Several 

things I think we need to act on and swiftly address. 

First, the seals used in the Sago mine were not constructed properly. When the omega block seals would not have withstood the 

force of the Sago explosion that MSHA estimated at 93 psi even if 

they were properly constructed, proper installations could be the 

difference between life and death in a future accident. It is important that mine operators, contractors and MSHA focus on the proper installation of these seals. 

The MINER Act requires MSHA to update its regulations on 

sealing abandoned areas by the end of this year. I am pleased 

MSHA has acted to increase the 20 psi alternative for seals, but 

I hope the final emergency temporary standard will go further in 

addressing some of the issues we saw at Sago. 

MSHA’s Sago report found that energy from a lightning strike 

travelled along an ungrounded pump cable left in a sealed-off area. 

Current regulations would not require that pump cable to be removed; and, indeed, it is commonplace for items to be left behind 

the seals when an area is abandoned. Clearly, this issue must be 

re-evaluated by MSHA and, if necessary, by this committee to ensure that items that could turn into conductors are not allowed to 

remain in a sealed area. 

The explosive range for methane is between 5 and 15 percent of 

the air. In a sealed area, methane will start below the explosive 

range, pass through the range and eventually become too highly 

concentrated to explode. This makes it crucial that companies and 

inspectors monitor methane levels in their abandoned areas, yet no 

regulation requires the monitoring of air in the sealed area. It is 

almost unbelievable that 1992 MSHA regulations required a sampling tube that would allow for the testing of air in the sealed-off 

areas but failed to actually require that testing be carried out. 

We know today that MSHA’s 1992 regulation on seals were 

wrong. This underscores the importance that MSHA get it right 

when it comes to the forthcoming regulation on seal strength and 

addressing the removal of items in sealed areas. 

The Aracoma tragedy points out the need for an increase of inspectors; and we have worked on that and funded that—an increase we have already begun—in order to catch obvious violations. 

I am anxiously awaiting the results of MSHA’s internal investigation of its own actions in the lead-up to these accidents but in 

particular the one in Aracoma. MSHA inspectors had been at the 

mine just weeks before the accident and failed to note critical safety violations and see that they were addressed. We need to know 

why and take the necessary steps, whether it is updated training 

for inspectors or another solution, to ensure that all hazards, and 

11

particularly those with the potential to cause a loss of life, are 

identified. 

The MINER Act was a positive step in getting serious about the 

safety of our Nation’s coal mines, as we said, when it passed, but 

it is not a stopping point. Congress must ensure that MSHA properly and expediently fulfills its obligations under the law and continues oversight to ensure that requirements are not diluted over 

time. It is important to note that most of the provisions of the 

MINER Act did not grant MSHA new authority. It instead required 

the agency to use its existing authority to address critical facets of 

mine safety and rescue and response. We should stand ready to 

legislate again to address issues that could prevent accidents and 

lead to safer coal mines if the agency needs additional authority or 

fails to act with necessary regulations. 

On behalf of the many miners in West Virginia who I represent, 

I want to thank you. I want to thank this committee for your dedication to ensuring safer mines, and I look forward to working with 

you as we continue our efforts. I look forward to answering any 

questions you might have and joining you to ask questions to the 

MSHA and thank you for the opportunity. 

[The statement of Mrs. Capito follows:]

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

Congress From the State of West Virginia 

Chairman Miller, Ranking Member McKeon, and Members of the Committee, 

thank you for the opportunity to testify at this hearing on the effectiveness of 

MSHA’s mine safety and health programs. It has been 17 months since the devastating month of January 2006 that saw 16 miners die in West Virginia—including 

12 at the Sago mine in my district. 

During this time we have worked together—West Virginia’s congressional delegation, this committee, and other members from both sides of the aisle to pass critical 

mine safety legislation and provide needed oversight to MSHA and NIOSH as they 

carry out their important responsibilities. It became clear immediately after Sago 

and Aracoma that many aspects of mine safety and emergency response were overlooked. 

The MINER Act addressed the obvious shortcomings in our response to accidents. 

I am pleased that MSHA has implemented emergency oxygen requirements pursuant to the act that will ensure a 96 hour supply of emergency oxygen or its equivalent for all miners. Regulations for mine rescue teams should be completed this 

year. It is important that we monitor the work of MSHA, NIOSH and the required 

interagency working group on communications technology. Nearly a year has passed 

since the MINER Act’s passage and we must continue making progress and ensure 

that the deadline for implementing two-way communication devices in mines is met. 

I am very pleased that my state of West Virginia has been a national leader in 

terms of beginning the process of getting rescue shelters to miners. In March of this 

year, the state approved 5 types of shelters for use in the states underground mines 

and gave mine operators until April 15 to submit shelter plans to the Office of Miners’ Health, Safety, and Training. One of these approved shelters, the inflatable 

LifeShelter was demonstrated outside prior to today’s hearing. 

Progress has been slower on the national level in terms of evaluating and approving these shelters. I understand the concerns of some regarding blast standards for 

a secondary explosion with respect to the refuge chambers. I also share MSHA’s belief—expressed at hearings last year during consideration of the MINER Act that 

evacuation must be the first option for miners in an emergency situation. 

Nonetheless, NIOSH and MSHA must speed up their process and ensure that 

miners across the country will have access to these life saving chambers as soon as 

possible. Again, it has been 17 months since Sago demonstrated the evacuation is 

not always possible. West Virginia has taken steps towards ensuring that our miners will have access to shelters, and the rest of the nation should too. 

Many of us pledged as we worked to pass the MINER ACT that we would return 

to address further regulations or legislation necessary to prevent future accidents 

following the completion of reports from the Sago and Aracoma accidents. This hearVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
12

ing is a step towards fulfilling that commitment, and there is much we can learn 

from the accident reports. 

Both MSHA and the West Virginia Office of Mine Safety and Training found that 

none of the safety violations at the Sago mine directly contributed to the explosion 

or its deadly result. However, clearly issues raised that MSHA and the mining community should learn from and act swiftly to address. First, the seals used in the 

Sago mine were not constructed properly. While the OMEGA block seals would not 

have withstood the force of the Sago explosion that MSHA estimates was greater 

than 93 psi, even if they were properly constructed, proper installation of seals could 

be the difference between life and death in a future accident. It is important that 

mine operators, contractors, and MSHA inspectors focus on the proper installation 

of seals. 

The MINER Act requires MSHA to update its regulations on the sealing of abandoned areas by the end of this year. I am pleased that MSHA has acted to increase 

the 20 psi requirement for alternative seals, but I hope that the final Emergency 

Temporary Standard will go further in addressing some of the issues we discovered 

at Sago. 

MSHA’s Sago report found that energy from a lightning strike traveled along an 

ungrounded pump cable left in the sealed off area. Current regulations would not 

require that pump cable to be removed, and indeed it is commonplace for items to 

be left behind the seals when an area is abandoned to mining. 

Clearly this issue must be reevaluated by MSHA and if necessary, by this committee to ensure that items that could turn into conductors are not allowed to remain in sealed areas. 

The explosive range for methane is between 5 and 15 percent of the air. In a 

sealed area methane will start below the explosive range, pass through the range, 

and eventually become too highly concentrated for an explosion due to a lack of oxygen. 

This makes it crucial that companies and inspectors monitor methane levels in 

abandoned areas so that they know if the concentration is becoming inert or if the 

mixture is within a danger zone. Yet no regulation requires the monitoring of air 

in the sealed area. It is almost unbelievable that 1992 MSHA regulations required 

a sampling tube that would allow for the testing of the air in sealed off areas, but 

failed to actually require that testing be carried out. 

We know today that MSHA’s 1992 regulations on seals were wrong. This underscores the importance that MSHA get it right when it comes to the forthcoming regulation on seal strength and address the removal of items left in the abandoned 

areas. 

The Aracoma tragedy points out the need for an increase in inspectors at MSHA—

an increase we have already begun—in order to catch obvious violations. At 

Aracoma, critical stoppings between the No. 7 Belt Air course and the intake air 

course for the 2 Section that could have prevented smoke from entering the 

escapeway were not in place, the mine’s approved ventilation plan was not followed, 

and tragically the valve that provided water to the mine’s fire suppression system 

was closed. 

I am anxiously awaiting the results of MSHA’s internal review of its own actions 

in the lead up to these accidents, but in particular at Aracoma. 

MSHA inspectors had been in the mine just weeks before the accident and failed 

to note critical safety violations and see that they were corrected. 

We need to know why, and take the necessary steps—whether it is updated training for inspectors or another solution to ensure that all hazards, and particularly 

those with the potential to cause loss of life are identified. 

The MINER Act was a positive start in getting serious about the safety of our 

nation’s coal mines. As we said when it passed, however, it is not a stopping point. 

Congress must ensure that MSHA properly and expediently fulfills its obligations 

under the law and continues oversight to ensure that requirements are not diluted 

over time. It is important to note that most provisions of the MINER Act did not 

grant MSHA new authority—it instead required the agency to use its existing authority to address critical facets of mine rescue and response. We should stand 

ready to legislate again to address issues that could prevent accidents and lead to 

safer coal mines if the agency needs additional authority or fails to act with necessary regulations. 

On behalf of the many miners in West Virginia whom I represent, I want to thank 

this committee for your dedication to ensuring safer mines and I look forward to 

working with you as we continue our efforts to protect miners. I look forward to answering your questions and joining you to ask questions of MSHA witnesses. 

13

Chairman MILLER. Thank you both very much for your testimony; and, again, if you have questions, we would invite you to 

participate and sit as part of the committee. 

We will then begin with our second panel. The first member of 

the panel is Dan Bertoni, who is the Director of the Education, 

Workforce and Income Security Team at the Government Accountability Office. 

Next will be Richard Stickler, who is the Assistant Secretary of 

Mine Safety and Health at the Department of Labor. Assistant Secretary Stickler was Director of the Pennsylvania Bureau of Deep 

Mine Safety from 1997 to 2003. He received his bachelor of science 

degree in general engineering from Fairmont State University in 

1968 and certified as a mine safety professional by the International Society of Mine Safety Professionals. 

Next, Jonathan Snare, who is the Acting Solicitor of Labor. Solicitor Snare served as Acting Assistant Secretary of the Occupational 

Safety and Health Administration. He received his BA from the 

University of Virginia and law degree from Washington Lee University. 

Professor R. Larry Grayson has chaired the Mine Safety and 

Health Technology and Training Commission established by the 

mining industry in 2006 after the serious accidents of that year. 

Dr. Grayson is Chairman of the Department of Mining and Nuclear 

Engineering at the University of Missouri-Rolla and was previously 

in charge of mine safety work at the National Institute of Occupational Safety and Health and received his Ph.D. in engineering of 

mines at West Virginia University. 

J. Davitt McAteer has served in the Clinton administration both 

as Assistant Secretary of Mine Safety and Health and as Acting Solicitor. He was appointed by the Governor of West Virginia to chair 

the panel that investigated the causes of the Sago and Aracoma 

Alma accidents, and Mr. McAteer is vice president for sponsored 

programs at the Wheeling-Jesuit University in West Virginia. He 

graduated from West Virginia University and College of Law. 

Welcome to the committee. We look forward to your testimony. 

When you begin to testify, a green light will go on; and then, when 

you have a minute remaining, which will be about 4 minutes into 

your testimony, a yellow light will go on and then a red light. But 

we will certainly allow you to finish your thoughts and the purposes of your remark. 

Congressman Rahall mentioned that we were joined by some 

family members here of the accidents. He mentioned Debbie 

Hamner and Sara Bailey who are here, but they have also been 

joined by Peggy Cohen, who is the daughter of Fred Ware who was 

killed in the accidents. We welcome them and again thank them 

for their commitment on this issue. 

Mr. Bertoni, we are going to begin with you. 

STATEMENT OF DAN BERTONI, DIRECTOR, EDUCATION, 

WORKFORCE AND INCOME SECURITY TEAM, GOVERNMENT 

ACCOUNTABILITY OFFICE 

Mr. BERTONI. Thank you, Mr. Chairman, members of the committee. Good morning. I am pleased to be here to discuss worker 

safety issues in underground coal mining. 

14

The tragic accidents that occurred early last year brought the 

Nation’s attention to the daily perils facing mine workers. In response, the Congress and the Department of Labor’s Mine Safety 

and Health Administration, or MSHA, took steps to prevent future 

fatalities. The Mine Improvement and New Emergency Response 

Act of 2006 required mine operators and MSHA to undertake a variety of reforms to enhance emergency response. MSHA also implemented several new safety and health standards. However, additional actions are needed to further enhance mine safety. 

My testimony today is based on two GAO reports issued today 

and will focus on three key areas: challenges the underground coal 

mines face in preparing for mine emergencies; MSHA’s role in 

miner training and other activities critical to mine safety and 

health; and how civil penalties are assessed when mine operators 

violate safety and health standards. 

In summary, underground coal mine operators reported challenges meeting new training and mine rescue team requirements. 

In March, 2006, MSHA directed mine operators to conduct emergency evacuation drills every 90 days, including drills that simulate actual emergency conditions such as fire or explosions. However, as of February, 2007, we found that half the mines had not 

yet conducted any simulation drills, primarily due to lack of special 

training facilities and the cost of such training. 

We also found that although MSHA had information on alternative tools and resources for conducting training under simulated 

conditions, such as smoke-filled mines, it was not being systematically shared with all mine operators. 

Mine operators also anticipate some difficulties stemming from 

the MINER Act requirement that rescue teams train at least annually at the mines they serve. This change could pose a challenge 

for rescue teams that serve many or all of the particular State’s 

mines. For example, depending on how the final regulations are 

implemented, one official told us its team could be required to conduct 120 annual training exercises compared, to the 12 it currently 

conducts. 

In anticipation of the new requirements, some operators have 

begun making changes to their rescue teams, while others are still 

assessing the potential costs of training and equipping such teams. 

Regarding MSHA, we identified opportunities for the agency to 

improve its oversight of miner training and to take additional steps 

to ensure that it maintains a skilled cadre of mine inspectors. 

MSHA approves mine operators’ training plans and inspects their 

training records but does not have consistent standards for certifying instructors, current information on instructor location or 

skills or any continuing education requirements for approved instructors to ensure that they update their knowledge of emerging 

safety and technology issues. MSHA also does not adequately 

evaluate training sessions or assess how well miners are learning 

the skills being taught. 

To better position itself to address future workforce needs, 

MSHA has taken steps to improve the mine inspector hiring process, including developing an upfront screening tool to assess the 

applicant’s skills and expedite hiring. The agency also obtained auVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
15

thority to hire inspectors under a broader range of pay scales, thus 

enhancing its ability to obtain and retain quality staff. 

However, MSHA has not yet developed a comprehensive strategy 

to address impending retirements to ensure that it continues to 

meet its mission goal of enhancing mine safety. Over 40 percent of 

MSHA’s inspectors will be eligible for retirement over the next 5 

years, and between 32 and 47 percent will likely leave in their first 

year of eligibility. We have recommended that MSHA develop tactical and strategic plans with specific goals for mitigating the loss 

of seasoned and experienced inspectors. 

Finally, in regard to penalties, we found that, while most proposed penalties are paid by mine operators, a small percentage of 

cases involving more serious and higher dollar amounts are appealed and often substantially reduced. Between 1996 and 2006, 

MSHA assessed about 500,000 penalties. About 32,000 penalties 

were contested. Nearly half of those were ultimately reduced by 

about 50 percent, regardless of the level of gravity and negligence 

originally noted by MSHA inspectors. 

While MSHA uses a standard formula to calculate penalties, 

other entities involved in the appeals process use methods that are 

more subjective. Thus, in some appealed cases we reviewed, it was 

not always transparent as to how final penalty amounts were derived by ALJs. 

MSHA most recently restructured its penalty process in a way 

that will most likely lead to higher penalties and, ultimately, more 

appeals. Thus, going forward, it is important that final penalty 

amount decisions are transparent and contain all necessary information. If not, it will be difficult to ensure that all entities are consistently applying relevant factors and that the impact of penalties 

and ensuring miner safety is not diminished. 

Mr. Chairman, this concludes my statement. I am happy to answer any questions that you or other members of the committee 

may have. Thank you. 

Chairman MILLER. Thank you. 

[The statement of Mr. Bertoni follows:]

16


bert-1.eps
17


bert-2.eps
18


bert-3.eps
19


bert-4.eps
20


bert-5.eps
21


bert-6.eps
22


bert-7.eps
23


bert-8.eps
24


bert-9.eps
25


bert-10.eps
26


bert-11.eps
27


bert-12.eps
28


bert-13.eps
29


bert-14.eps
30


bert-15.eps
31


bert-16.eps
32


bert-17.eps
33


bert-18.eps
34


bert-19.eps
35


bert-20.eps
36


bert-21.eps
37

Chairman MILLER. Mr. Stickler? 

STATEMENT OF RICHARD STICKLER, ASSISTANT SECRETARY 

OF MINE SAFETY AND HEALTH, DEPARTMENT OF LABOR 

Mr. STICKLER. Chairman Miller, Ranking Member McKeon and 

members of the committee, I am pleased to appear before you today 

to discuss the important actions of the Mine Safety and Health Administration in protecting the health and safety of the Nation’s 

miners. 

I have been part of the mining community for more than 40 

years. My experience includes working in underground coal mines 


bert-22.eps
38

as well as working in and around the mining community every day. 

I know firsthand that every fatality, serious injury is devastating 

to miners, their families and the communities in which they live. 

Let me be very clear that our number one priority is to protect the 

health and safety of America’s miners. 

MSHA began to implement new policies to protect miners even 

before Congress passed the MINER Act. For example, in March of 

2006, MSHA issued emergency temporary standards addressing 

many of the safety provisions that were ultimately included in the 

MINER Act. We were guided by three basics of mine safety: strict 

enforcement of the law; effective safety training and practices for 

miners, supervisors and managers; and the implementation of new 

technologies that can help achieve a safer workplace. 

On enforcement, we would use all the tools available to us to 

achieve our goals. We will be particularly aggressive with those 

mine operators who habitually violate MSHA’s standards and who 

seem to view penalties as just another cost of doing business. On 

March 29 of this year, MSHA issued a $1.5 million penalty, the 

largest ever assessed to a coal operator in this agency’s history. 

MSHA continues to move forward to both implement the MINER 

Act and to enforce provisions of the Mine Act. Over the past 14 

months, MSHA has issued an emergency temporary standard to 

improve mine safety, an emergency mine evacuation rule, a program information bulletin raising the required strength of seals 

from 20 psi to 50 psi, a program information bulletin on breathable 

air, a program information letter on flagrant violations, a rule implementing increased part 100 civil penalties; and we are working 

to finalize an ETS that will strengthen seal requirements. 

In addition, MSHA has trained 14 family liaisons and has another major rule in the regulatory process concerning mine rescue 

teams. This rule would improve the training, certification and the 

viability of mine rescue teams. 

While MSHA faces significant challenges to both replace enforcement personnel who are retiring and expand their enforcement 

ranks, I believe the agency will meet its goal of hiring 170 new enforcement personnel by the end of this fiscal year. 

Today, MSHA remains focused on our core mission, to improve 

mine health and safety of America’s miners and work toward the 

day when every miner goes home safe and healthy to family and 

friends after every shift of every day. MSHA cannot do this alone. 

The entire mining community must also do their part to improve 

mine safety and health. Working together, we can achieve this important goal. 

I thank you for allowing me to testify today, and I look forward 

to answering your questions. 

Chairman MILLER. Thank you. 

[The statement of Mr. Stickler follows:]

Prepared Statement of Hon. Richard E. Stickler, Assistant Secretary of 

Labor, Mine Safety and Health Administration 

Chairman Miller, Ranking Member McKeon, and the Members of the Committee, 

I am pleased to appear before you today to discuss the actions the Mine Safety and 

Health Administration (MSHA) is taking to protect the health and safety of our nation’s miners. I would also like to provide you a report on the significant progress 

39

MSHA is making in implementing the Mine Improvement and New Emergency Response (MINER) Act of 2006, signed by the President on June 15, 2006. 

I have been involved in the coal mining industry for more than 40 years. My experience includes working shifts in underground coal mines as well as working in and 

around the mine site and mining community every day. I know firsthand that every 

fatality, injury, and illness is devastating for miners, their families, and the communities they live in. 

Accident Investigations 

In March and April, MSHA released the results of its investigations of the 

Aracoma Alma No. 1 and Darby mining accidents of last year. MSHA released the 

results of the Sago investigation last week. The internal MSHA reports evaluating 

MSHA’s activities surrounding the Aracoma, Darby, and Sago disasters will be released over the next month. In these reports, MSHA will review its policies and 

practices and develop action plans to address identified shortcomings. 

MSHA Actions to Improve Mine Safety 

Following the tragedy at Sago Mine, MSHA has taken swift action to provide new 

regulatory protections for miners at the same time that it has increased its enforcement efforts. For example, MSHA issued an emergency temporary standard on 

March 9, 2006, addressing many of the safety provisions that were ultimately included in the MINER Act, such as increasing the number of Self-Contained Self-Rescuers (SCSRs) in underground coal mines, additional safety training for underground coal miners, and immediate notification of mine accidents applicable to all 

mines. 

In 2006, MSHA also stepped up its enforcement actions in both coal and metal 

and non-metal mines, issuing 77,129 citations and orders in coal mines, up nearly 

12 percent from 69,124 in 2005. MSHA also increased the number of citations issued 

in metal and non-metal mines to 62,937, up nearly 7 percent from 59,101 the year 

earlier. Proposed assessments issued by MSHA in 2006 totaled $35 million, up 40 

percent from $25 million in 2005. 

When the MINER Act became law, even before the publication of the new civil 

penalty regulation, MSHA began enforcing new civil penalties for flagrant violations, unwarrantable failures, and failure to immediately notify MSHA of mine accidents. MSHA has already issued the first ever citations for flagrant violations. Six 

of these, totaling $874,500, were assessed against R&D Coal Company for the October 23, 2006 death of one of its employees. A flagrant violation is defined in the 

MINER Act as ‘‘a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety and health standard that substantially and proximately caused, or reasonably could have been expected to cause, 

death or serious bodily injury.’’ MSHA will continue to use this important enforcement tool to bring about future compliance. 

MSHA also initiates special emphasis inspection programs that focus special enforcement activities on specific aspects of mining. For example, this past February 

and March, MSHA initiated special emphasis inspection programs in Coal Districts 

4 in Southern West Virginia and District 6 in Eastern Kentucky to examine roof 

controls plans and roof support methods in mines that use retreat mining methods. 

In District 4, MSHA issued 234 citations and orders during a two-week period. 

District 6 conducted a special initiative which targeted all mines in the district 

that are conducting or will conduct retreat mining. The purpose was to observe retreat mining practices and to ensure that adequate safety precautions for retreat 

mining were included in each mine’s roof control plan. Between March 5 and 22, 

2007, MSHA inspectors inspected 33 mines and issued 8 citations related specifically to roof control issues. Of the 33 mines involved in the initiative, 21 were 

verified to have adequate safety precautions for retreat mining, and 12 were required to provide additional safety precautions. 

In February, MSHA also conducted a nationwide targeted Special Health Emphasis enforcement program to ensure operator compliance with the applicable respirable dust standard at specific mines during normal production cycles, and that 

ventilation and dust control parameters were adequate and effective in protecting 

miners’ health at all times. Over 1,130 dust samples were collected from February 

20th to March 3rd, 2007 at 61 selected underground coal mines in all eleven coal 

districts. Thirty-two citations and one unwarrantable failure order for ventilation 

plan violations were issued during the health inspections, two citations were issued 

for excessive dust, and 44% of the enforcement actions were designated as Significant & Substantial (S&S). Further evaluation will be conducted to identify good and 

bad ventilation plans and practices. 

40

Implementing the MINER Act of 2006 and Initiating New Policies 

Last year, Congress passed and the President signed the MINER Act—the most 

significant mine safety legislation in nearly 30 years. The provisions of the MINER 

Act that have been implemented by MSHA include: • The approval or partial approval of emergency response plans for the 466 currently active underground coal mines; • Requiring more Self-Contained Self-Rescue (SCSR) devices for each miner in 

every underground coal mine; • Requiring flame resistant life lines for evacuation in all underground coal 

mines; • Mandating additional mine evacuation safety training and training on the use 

of SCSRs; • Implementing a new maximum civil penalty of up to $220,000 for flagrant violations, and new minimum penalties for ‘‘unwarrantable failure’’ and ‘‘immediate notification’’ violations. • Requiring all mine operators to notify MSHA immediately after an accident; • Installing redundant underground-to-surface communications systems; • Requiring a supply of breathable air to miners who are trapped in underground 

coal mines; • Training 14 MSHA officials to be Family Liaisons; • Requiring post accident tracking of underground miners and; 

• Requiring realistic ‘‘expectations’’ training for miners who use SCSRs. 

Keeping miners safe and healthy is MSHA’s top priority. Implementation of the 

MINER Act is critical to achieving this goal, and I am proud of MSHA’s work in 

this regard. I want to review with the Committee in detail the objectives of the 

MINER Act that MSHA has already met. 

Emergency Mine Evacuation 

On December 8, 2006, the Department of Labor published its final rule on Emergency Mine Evacuation in the Federal Register. The final rule helps ensure that 

miners, mine operators, and MSHA will be able to respond quickly and effectively 

in the event of an emergency. The rule includes requirements for mine operators 

to provide increased capability for mine emergency response and evacuation; includes additional requirements for SCSRs and their storage; improved training and 

escape drills; lifelines, tethers, and multi-gas detectors; and accident notification. 

This final rule includes many provisions that MSHA initially included in the Emergency Temporary Standard issued March 9, 2006, and were later incorporated in the 

MINER Act. The provisions include: 

• Increased numbers and storage of SCSRs; 

• Improved mine emergency evacuation drills and training; 

• Installation and maintenance of directional lifelines in underground coal mines, 

which must be fire resistant within three years; and 

• Immediate accident notification for all mines. 

Once again, MSHA went beyond the requirements of the MINER Act by requiring 

mine operators to provide multi-gas detectors to miners working alone and to each 

group of miners. While this provision was not part of the MINER Act, MSHA believes it is important to highlight the addition of this requirement in our final emergency mine evacuation standard because, in the event of a mine emergency, it will 

enable miners to know whether there are toxic gases in the mine atmosphere. 

This rule was effective immediately on December 8, 2006, with the exception of 

certain training and equipment provisions. All provisions are now effective; SCSR 

training units for annual expectations training have now been developed. On March, 

30 MSHA published a notice in the Federal Register notifying mine operators that 

the units were available. Mine operators must have had a purchase order for these 

training units by April 30 and must conduct training with them within 60 days of 

receipt of the units. 

MSHA has also developed an SCSR database to enable the agency to locate 

SCSRs affected by future recalls or other approval actions, and to help our enforcement personnel inspect the SCSRs at the mines by cross checking reported inventories with units in use. In addition, NIOSH and MSHA will use this database to 

randomly select and collect SCSRs deployed at mines for testing in the Long Term 

Field Evaluation Program. 

Emergency Response Plans 

The MINER Act requires underground coal mine operators to develop and adopt 

written Emergency Response Plans (ERPs) specific to the mines they operate. In accordance with the MINER Act, MSHA required operators to submit plans by August 

14, 2006. MSHA provided operators with guidance related to the requirements for 

41

breathable air on February 8, 2007. This meant that ERPs could only be partially 

approved. Revised ERPs, indicating how breathable air will be provided, were required by March 12, 2007. In addition to breathable air, the ERPs must address 

post-accident communications and tracking, lifelines, training, and local coordination. 

We are ensuring that the plans are reviewed in a timely manner, approved, and 

implemented for all underground coal mines as specified in the Act. As of May 8, 

2007, there were 466 active underground coal mines. Of those, 261 have submitted 

ERPs that have been partially approved, and another 205 have been fully approved. 

MSHA is reviewing and discussing plan submissions with operators with the goal 

of providing full approval of all submitted plans in the near future. 

Post-Accident Breathable Air 

With respect to post-accident breathable air, MSHA issued a Program Information 

Bulletin (PIB) on February 8, 2007, to provide guidance to mine operators concerning acceptable quantities and delivery methods in underground coal mines. This 

PIB was placed on MSHA’s Web site and was distributed widely to the coal mining 

community. 

The PIB provides the following options for meeting the breathable air requirements of the MINER Act: 

• Establish boreholes within 2,000 feet of the working section; or 

• Provide forty-eight hours of breathable air located within 2,000 feet of the working section of the mine, with contingency arrangements to drill boreholes if miners 

are not rescued within 48 hours; or 

• Provide ninety-six hours of breathable air located within 2,000 feet of the working section; or 

• Provide other options that provide equivalent protection based on unique conditions at a mine. 

Methods of providing breathable air (in barricaded or other areas that isolate miners from contaminated air) include: 

• Drilling boreholes; 

• Air line supplied by surface positive pressure blowers; or 

• Compressed air cylinders, oxygen cylinders, or chemical oxygen generators; and 

• Other means that provide 96 hours of breathable air. 

In addition to the PIB, we have also posted related materials on MSHA’s website, 

including a hazard awareness information sheet on use of compressed air and compressed oxygen; information sheets on methods of providing breathable air, including calculations; and questions and answers addressing specific breathable air 

issues. 

Post-Accident Communications and Post-Accident Tracking 

Section 2 of the MINER Act requires that each mine evacuation plan provide a 

redundant means of communications with the surface for persons underground. It 

also requires that the plan provide a means of tracking the pre-accident location of 

all underground miners. The MINER Act requires that mine operators adopt wireless communications and electronic tracking systems by June 2009. 

To comply with the requirements of Section 2, as of May 2, 2007, MSHA has met 

with representatives of 49 communication and tracking system companies, and observed the testing or demonstration of 20 post-accident communications and tracking systems at various mine sites around the country. When these systems are presented to MSHA for approval, we will expedite the approval process to ensure that 

safe, durable and reliable systems get into the mines as quickly as possible. To date, 

MSHA has approved 19 systems, including four new devices. These new devices are: 

• The Kenwood portable hand held radio; 

• Marco RFID (radio frequency identification) Tracking Tag; 

• Matrix Design Group RFID Tracking Tag; and 

• NL Technologies Model Standalone WiFi Tracking Tag 

In order to meet the long range communications and tracking requirements of the 

MINER Act, MSHA is reviewing all the available technology and working with the 

National Institute for Occupational Safety and Health (NIOSH) and manufacturers 

to help in the development of safe, reliable systems for underground coal mines. 

MSHA’s responsibilities are to ensure these devices do not present an explosion or 

fire hazard in the mining environment, and also verify that they will function underground , while NIOSH is responsible for researching and developing these devices. MSHA has had contact with 137 parties about systems to track and/or communicate with miners while they are underground. However, as of today, there is 

no truly wireless tracking or communications system that meets the requirements 

of the MINER Act. 

42

Mine Rescue Teams 

The MINER Act requires the Department of Labor to issue regulations with regard to mine rescue teams by December 2007. These regulations must address improved training, certification, availability, and composition requirements for underground coal mine rescue teams. MSHA is currently drafting a proposed rule to implement the MINER Act provisions for mine rescue teams. 

Civil Penalties 

After passage of the MINER Act, MSHA promptly increased penalties for immediate accident notification and unwarrantable failure violations. On March 22, 2007, 

MSHA published a final rule to increase civil penalty amounts for mine safety and 

health violations; the rule became effective on April 23, 2007. Issuance of this rule 

fulfills another requirement of the MINER Act and demonstrates the commitment 

of MSHA to protect the safety and health of our nation’s miners. 

As prescribed by the Act, the final rule: 

• Establishes a maximum penalty of $220,000 for ‘‘flagrant’’ violations, as proposed in the President’s previous budgets. • Sets minimum penalty amounts of $2,000 and $4,000 for ‘‘unwarrantable failure 

citations and orders.’’ • Imposes a minimum penalty of $5,000 (up to a maximum of $60,000) for failure 

to timely notify MSHA of a death or an injury or entrapment with a reasonable potential to cause death. 

Other major provisions of the final rule applicable to all mine operators and contractors are: • Increases civil penalties overall—by an estimated 179 percent using 2005 violation data—targeting the most serious safety and health violations with escalating 

penalties. • Adds a new provision to increase penalties—notwithstanding the severity—for 

operators who repeatedly violate MSHA standards. • Replaces the $60 single penalty with higher formula assessments for non-significant and substantial (non-S&S) violations. 

Family Liaison Program 

The MSHA Family Liaison Policy has been put into place to provide for an MSHA 

liaison to be with families at the site of a mine accident where miners are unaccounted for or there are multiple fatalities. A Program Policy Letter has been issued 

and 14 designated family liaison personnel have completed their initial training sessions. The National Transportation Safety Board and the American Red Cross have 

helped train these individuals. Three MSHA family liaisons were present in Barton, 

Maryland, to be with the families of the miners during the recent accident at TriStar Mining Company. 

Sealing of Abandoned Areas in Underground Coal Mines 

The MINER Act requires MSHA to issue mandatory heath and safety standards 

relating to the sealing of abandoned areas in underground coal mines. The MINER 

Act requires the health and safety standards to ‘‘provide for an increase in the 20 

psi standard currently set forth in section 75.335(a)(2) of title 30, Code of Federal 

Regulations.’’

As an interim step, last year MSHA issued a temporary moratorium on new construction of alternative seals and then raised the psi standard for existing and new 

alternative seals by 150% from 20 to 50 psi. MSHA also issued guidance on the design and evaluation of new seals and the inspection of existing seals. 

MSHA is currently drafting an emergency temporary standard which addresses 

improved seal strength, design, construction, repair and sampling of the atmosphere 

behind seals. 

Technical Study Panel on Belt Air 

Section 11 of the MINER Act required MSHA to establish a Technical Study 

Panel on Belt Air. The purpose of this Panel is to ‘‘provide independent scientific 

and engineering review and recommendations with respect to the utilization of belt 

air and the composition and fire retardant properties of belt materials in underground coal mining.’’ Congress provided the Panel one year from the Panel’s appointment to issue its report, and the Secretary of Labor is given an additional 180 

days to respond to the Panel’s report. 

The charter governing the Panel was published in the Federal Register on December 22, 2006. The first two meetings of the Technical Study Panel have already 

taken place—the first on January 9-10, 2007 and the other on March 28-30 in Pittsburgh, Pennsylvania. The third meeting is being held now in Salt Lake City, Utah, 

and a fourth is scheduled for June 20-22 in Birmingham, Alabama. Members of the 

43

Panel are prominent and experienced mine safety and health professionals. As mandated in the MINER Act, two of the Panel members were appointed by the Department of Health and Human Services, two by the Department of Labor, and two 

members were appointed by Congress. 

Refuge Alternatives 

NIOSH is conducting research and field tests on refuge alternatives. By the end 

of this year, NIOSH is scheduled to report the results of the research to the Department of Labor. By mid-2008, in accordance with the MINER Act, the Department 

of Labor will report to Congress on the actions MSHA will take in response to the 

NIOSH report. MSHA is aware of requirements by some states for refuge chambers, 

and MSHA is accepting state approved refuge chambers as a means of providing 

breathable air. 

Recruitment 

The Emergency Supplemental Appropriations Act of 2006 (P.L.109-234) provided an additional $25.6 million for MSHA for coal enforcement, including the hiring of 

coal mine inspectors and other enforcement personnel. MSHA is pressing ahead 

with recruitment, training and deployment of the additional 170 coal mine enforcement personnel funded by the emergency supplemental appropriation. Through the 

first three quarters of MSHA’s hiring plan, 126 new enforcement personnel staff has 

been hired. While MSHA faces significant challenges to both replace the enforcement personnel who will likely retire this year and expand our enforcement ranks, 

I am confident that the agency will meet its goal of hiring 170 net new personnel. 

The President’s FY 2008 budget request includes $16.6 million to maintain these 

enforcement staff. 

MSHA continues to conduct recruitment drives in local communities around the 

country, and we have hired additional staff at our Mine Health and Safety Academy 

to ensure that we can properly and expeditiously train our new inspectors and get 

them out to the job sites where they will make a difference. I believe this training 

is the best, most effective program MSHA has ever had and will enable these new 

inspectors to meet today’s challenges. In the end, I strongly believe the increased 

presence of MSHA enforcement staff at the job sites will have a positive impact on 

mine safety and health. 

Current Enforcement Activities 

MSHA will use all of the tools available to achieve our goal of safer and healthier 

mines, including tough enforcement, education and training, and technology. MSHA 

will be particularly aggressive with those mine operators who habitually violate 

MSHA standards and seem to view penalties as just another cost of doing business. 

In order to better identify these persistent repeat violators, MSHA is developing a 

database to provide for a more objective analysis of accident trends and enforcement 

results. MSHA will use the data developed from this database to target those operators who refuse to follow the laws and regulations governing mine safety and health. 

One particular tool—pattern of violations—has been in MSHA’s arsenal for over 

30 years but the agency has never used it. The Mine Act authorizes MSHA to issue 

a withdrawal order under certain conditions disclosed by an inspection conducted 

within 90 days after a notice that the mine operator has a pattern of violations of 

mandatory standards that could have significantly and substantially contributed to 

mine hazards. MSHA has a regulation that provides for a letter warning mine operators that they have a potential pattern of violations before the statutory notice is 

issued. While MSHA has issued such letters, it has never proceeded to issue the 

statutory notice. MSHA has recently initiated the development of objective criteria 

to identify mines that may have a pattern of violations. Once this new criteria is 

in place, MSHA will issue pattern of violations notices and orders where warranted. 

This measure is tough, but I believe it is also necessary in instances where the safety of miners is routinely jeopardized. 

MSHA will also continue to conduct focused inspections on known hazards, such 

as the program we recently completed on retreat mining. In addition to implementing the MINER Act, MSHA will continue to inspect each underground mine 

four times annually, and each surface mine twice a year, as required by statute. 

Conclusion 

MSHA continues to move forward to both implement the MINER Act and to enforce the provisions of the Mine Act. Over the past 14 months, MSHA has issued—

• An Emergency Temporary Standard to improve mine safety; 

• Two major regulations to implement the MINER Act; 

• A Program Information Bulletin on breathable air; 

• A Program Information Letter on flagrant violations; and 

44

• Another Program Information Bulletin on seals. 

These actions have been taken to implement provisions of the MINER Act. In addition, two major rules to implement the MINER Act are in various stages of the 

regulatory process and should be in final form by the end of 2007 as mandated by 

Congress. 

Today, every single person at MSHA remains focused on our core mission: to improve the safety and health of America’s miners and to work toward the day when 

every miner goes home safe and healthy to family and friends, after every shift of 

every day. MSHA cannot do this alone. The entire mining community—mine operators and miners included—must also do their part to improve mine health and safety. Together MSHA, mine operators and miners can achieve this important goal. 

Thank you for allowing me to testify today. I look forward to answering your questions and to working with this committee to continue to improve mine safety. 

Chairman MILLER. Mr. Snare? 

STATEMENT OF JONATHAN SNARE, ACTING SOLICITOR OF 

LABOR, DEPARTMENT OF LABOR 

Mr. SNARE. Chairman Miller, Ranking Member McKeon and 

members of the committee, I am pleased to appear before you today 

to discuss how the Office of the Solicitor supports and assists 

MSHA in its efforts to protect the health and safety of our Nation’s 

miners. 

The Office of the Solicitor, or SOL as we are known around the 

Department of Labor, has a long and distinguished record of providing high-quality legal services to the Department and its client 

agencies. SOL is relatively unique among legal offices in Federal 

agencies because it has independent litigating authority under a 

number of Federal statutes, including the Mine Act. 

Enforcement is our first priority and accounts for the majority of 

SOL efforts in support of MSHA. Attorneys in our national and regional offices prosecute and defend MSHA enforcement actions and 

whistleblower protection cases before the independent Federal 

Mine Safety and Health Review Commission. We secure access to 

mines through injunctions when mine operators deny entry to 

MSHA inspectors, and we jointly refer criminal cases to the Department of Justice for investigation and criminal prosecution. 

In recent years, mine operators have contested an average of 6 

percent of the total number of violations issued. We expect that the 

contest rate on MSHA citations will increase because of the higher 

civil penalties now being assessed and as MSHA uses all of its enforcement tools as directed by Assistant Secretary Stickler, including the new tools authorized by the MINER Act. 

Whistleblower cases under the Mine Act are also a high priority 

for SOL and MSHA. To ensure that whistleblower cases get the immediate attention they deserve, SOL and MSHA have established 

internal procedures that require a decision to file within 90 days 

of the complaint being filed with MSHA. Discharge cases are handled even faster. In appropriate cases, MSHA and SOL work together to take the action necessary to seek temporary reinstatement of a miner allegedly discharged for engaging in protected 

safety activity within a month from the date the miner files a complaint. 

SOL also gives high priority to any case involving withdrawal orders issued by MSHA inspectors when they find that an imminent 

danger exists at a mine. 

45

In addition to our priority enforcement cases, SOL is going after 

mine operators who refuse to pay their civil penalties. 

SOL is working closely with MSHA to consider how best to employ the new enforcement tools to protect the safety of American 

miners, such as the MINER Act’s authority to issue citations for 

flagrant violations of mandatory safety and health standards. 

SOL works closely with MSHA when an inspector identifies a 

violation appropriate for a flagrant designation to make sure all of 

the legal elements are satisfied. 

SOL is also supporting Assistant Secretary Stickler’s decision to 

utilize the pattern of violations provision in the Mine Act to ensure 

that this policy will meet any potential legal challenges. Under this 

provision, MSHA can issue a withdrawal order requiring miners to 

exit the mine. Even though this provision has been in MSHA’s arsenal for over 30 years, it has never been used. 

SOL attorneys also provide legal support for mine accident investigations. In major accidents SOL will assign multiple attorneys to 

the investigation to ensure that the accident team has our full support and that eventual enforcement actions are backed up by solid 

evidence. For example, during the Sago investigation, the operator 

refused to allow the United Mine Workers of America representatives to participate in the underground accident investigation. SOL 

acted quickly on behalf of the UMWA to ensure that they can serve 

as a representative of the miners at Sago. 

SOL also provided support for MSHA in their investigation of the 

Aracoma accident, which resulted in a criminal referral to the Department of Justice and the imposition of the highest civil penalty 

against a coal mine operator in history. 

SOL attorneys also provide legal support to MSHA’s rulemaking 

efforts. SOL works closely with MSHA to develop the emergency 

temporary standard and the subsequent final rule on emergency 

mine evacuations. 

In addition to the rulemakings updating the civil penalty regulations and the rules on seals and mine rescue mandated by the 

MINER Act, SOL has supported MSHA providing legal guidance 

and advice on the review and approval of emergency response 

plans, developing policy on implementing the Family Liaison Program and chartering and providing legal support on the belt air 

technical study panel. 

In assisting MSHA to achieve its regulatory objectives, SOL is 

keenly focused on making sure that these requirements withstand 

legal challenges. These efforts are particularly important because 

of the likelihood that these rules will be challenged in Federal 

court. 

SOL continues to fully support MSHA and Assistant Secretary 

Stickler’s clear message of strong enforcement. The Office of the 

Solicitor is also working with MSHA to ensure timely completion 

of the congressional mandates in the MINER Act. The attorneys in 

our office take their responsibility seriously and are proud to do 

their part in protecting America’s miners. 

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

committee, for the opportunity to testify; and I look forward to answering your questions. 

Chairman MILLER. Thank you. 

46

[The statement of Mr. Snare follows:]

Prepared Statement of Jonathan L. Snare, Acting Solicitor, U.S. 

Department of Labor 

Chairman Miller, Ranking Member McKeon, and Members of the Committee, I 

am pleased to appear before you today to affirm the commitment of the Office of 

the Solicitor to support and assist the Mine Safety and Health Administration 

(MSHA) in its efforts to improve and protect the health and safety of our nation’s 

miners. We believe that MSHA and the attorneys in the Solicitor’s Office must work 

hand-in-hand to carry out MSHA’s enforcement and regulatory responsibilities. 

Role of the Office of the Solicitor 

The Office of the Solicitor, or ‘‘SOL’’ as we are known in the Department, has a 

long and distinguished record of providing high quality legal services to the Department of Labor and its client agencies. SOL is relatively unique among legal offices 

in federal agencies other than the Department of Justice (DOJ) because it has independent litigating authority under a number of federal statutes, including the Mine 

Act of 1977. Attorneys in our headquarters division and regional offices handle 

MSHA’s enforcement litigation before the independent Federal Mine Safety and 

Health Review Commission (Commission) Administrative Law Judges (ALJs). 

Enforcement is our first priority and accounts for the majority of our efforts in 

support of the MSHA program. We prosecute and defend MSHA enforcement actions 

and whistleblower protection cases before the Commission, secure access to mines 

through injunctions when mine operators deny entry to MSHA’s inspectors, and 

jointly refer criminal matters like the referral of the Aracoma violations to DOJ for 

investigation and possible criminal prosecution. SOL attorneys also assist MSHA by 

providing a broad range of legal guidance and advice on all aspects of our client’s 

activities. 

Regular Enforcement Responsibilities 

Following the mining accidents last year and enactment of the MINER Act, SOL 

mobilized legal resources to assist MSHA in implementing the new legislation, while 

continuing to carry out regular enforcement responsibilities. 

Litigating contested violations. In recent years, mine operators have contested an 

average of six percent of the total number of violations issued, which have ranged 

up to 135,000. All contested violations are handled by SOL attorneys or trained 

MSHA specialists. We expect that the historic contest rate of six percent will increase as a reaction to the increased civil penalties now being assessed and the full 

use of MSHA’s enforcement tools as directed by Assistant Secretary Stickler. 

Litigating whistleblower complaints. SOL and MSHA have continued to promptly 

address whistleblower cases—a high priority issue for DOL and MSHA. During Fiscal Year 2006, MSHA received 106 complaints. As of early May this year, MSHA 

has received 59 complaints. To ensure that whistleblower cases get the immediate 

attention they deserve, SOL and MSHA have established internal procedures that 

require a decision on whether or not to file the case with the Commission within 

90 days of the complaint being filed with MSHA. Discharge cases are handled even 

faster. In appropriate cases, MSHA and SOL will work together to take the action 

necessary to seek temporary reinstatement of a miner allegedly discharged for engaging in protected safety activity within a month from the date the miner files a 

complaint. 

Seeking injunctions to enforce withdrawal orders. We also give high priority to 

any case involving withdrawal orders issued by MSHA inspectors because they have 

found an imminent danger exists at the mine. While such cases are relatively rare, 

they can be complex (for example, cases involving expert testimony about mine ventilation plans). Although under the Mine Act, violations are corrected first before 

they are litigated, any enforcement action that stops production is vigorously contested before the judge. For the same reason, any case involving a failure to abate 

a violation, and thus issuance of a withdrawal order, also gets high priority and can 

result in an injunction action in District Court. 

Going after delinquent mine operators. In addition to our priority enforcement 

cases, we are using innovative methods to go beyond the standard debt collection 

procedures in the Debt Collection Act to ensure that delinquent mine operators pay 

their civil penalties, including actions to enjoin operators from failing to pay civil 

penalties. Once the court issues an order, a recalcitrant operator can be held in contempt if he does not pay. 

47

Support for Accident Investigations and Criminal Referrals 

When fatal accidents occur, SOL attorneys are immediately notified and are prepared to give on-the-scene legal support to MSHA investigators. In major accidents 

like Sago, Aracoma, and Darby, we assign multiple attorneys to the investigation 

to ensure that the accident team has our full support and that eventual enforcement 

actions are backed up by solid evidence. 

For example, during the Sago investigation, after two anonymous miners designated the United Mine Workers of America (UMWA) as a representative of miners 

at Sago, the operator refused to allow the UMWA representatives to participate in 

the underground accident investigation. SOL took immediate action to obtain an injunction in District Court and successfully defended the injunction in the Court of 

Appeals. SOL’s injunction case was filed on the same day the operator denied the 

UMWA their participation rights and the Sago investigation proceeded without 

interruption with participation by the UMWA. 

The Aracoma investigation is an example of a complex investigation involving 

both a criminal referral and the highest civil penalty against a coal mine operator 

in history. 

SOL also plays a critical role in assisting MSHA to refer potential criminal violations of the Mine Act to DOJ whenever they are found. Referrals to DOJ are done 

by a letter signed jointly by career MSHA and SOL officials. 

New Enforcement Developments 

SOL works closely with MSHA to consider how best to employ new enforcement 

tools to protect the safety of American miners, such as the MINER Act’s authority 

to issue citations for flagrant violations of mandatory safety and health standards. 

SOL advised and assisted MSHA in the development of guidelines for determining 

when a violation should be designated as ‘‘flagrant’’ and assessed an appropriately 

high penalty. Citations for flagrant violations are particularly useful in instances 

where the mine operator has acted recklessly or habitually violated MSHA’s mandatory standards and view penalties as the cost of doing business. SOL works closely 

with MSHA when an inspector identifies a violation appropriate for a flagrant designation to make sure that all the elements are satisfied. Flagrant violations can 

result in a penalty up to $220, 000. We fully expect these cases to be litigated and 

we will defend them at the Commission and on appeal where necessary. 

Under the MINER Act, new minimum penalties have been implemented by 

MSHA regarding accident notification and unwarrantable failures. We believe that 

mine operators will begin to contest citations as a reaction to these new minimum 

penalties. 

Assistant Secretary Stickler’s decision to utilize the pattern of violations provision 

in the Mine Act will also require careful planning and preparation to ensure that 

we can meet any legal challenge. Under this provision, MSHA can issue a withdrawal order requiring miners to exit the mine. Even though this provision has been 

in MSHA’s arsenal for over 30 years, it has never been used. As Assistant Secretary 

Stickler notes in his testimony, he intends to systematically review the enforcement 

and safety records at all mines and take appropriate action where a pattern of violations is established. Once the power of this tool has been exercised, we expect that 

mine operators will vigorously contest more citations to avoid the potential of withdrawal orders based upon a notice of a pattern of violations. 

Development and Defense of New Rules 

SOL attorneys at headquarters provide legal support to MSHA’s rulemaking efforts. The tragic events in early 2006, particularly the accidents at the Sago and 

Aracoma mines, led MSHA to conclude that a more integrated approach to mine 

emergency response and evacuation was necessary. This conclusion prompted the 

issuance of an Emergency Temporary Standard (ETS) to protect miners from the 

grave danger associated with mine emergencies and evacuations. In accordance with 

the Mine Act, the ETS was effective immediately upon publication in the Federal 

Register on March 9, 2006, and served as the proposed rule. This was the second 

ETS issued by this Administration out of only three in MSHA’s nearly 30-year history. SOL worked closely with MSHA to develop the ETS and the subsequent final 

rule on Emergency Mine Evacuation. Our attorneys provided legal advice and counseling on all aspects of the rulemaking, including the ‘‘grave danger’’ finding, the 

regulatory text, and the preamble justification for the rule. 

In addition to the larger, more intensive rulemakings including the update of the 

civil penalty regulations and the rules on seals and mine rescue mandated by the 

MINER Act, SOL has supported MSHA by providing legal guidance and advice on 

the review and approval of Emergency Response Plans, developing policy on implementing the Family Liaison Program, and chartering and providing legal support 

48

to the technical study panel that is reviewing the use of belt air and the composition 

and fire retardant properties of belt materials. 

In assisting MSHA in achieving its objectives through the development and implementation of new rules, SOL is keenly focused on making sure that the requirements withstand legal challenges. The efforts are particularly important because of 

the likelihood that these rules will be challenged, as were two of MSHA’s recent initiatives. 

The first challenge was filed by the National Mining Association (NMA) to 

MSHA’s final rule on emergency mine evacuations. 

The second challenge was filed also by the NMA to MSHA’s February 2007 Program Information Bulletin (PIB). This PIB stems from the MINER Act’s requirement that underground coal mine operators adopt emergency response plans providing for sufficient supplies of post-accident breathable air. On May 7, 2007, we 

filed a motion to dismiss this challenge. 

Both challenges were filed in the D.C. Circuit Court of Appeals and SOL will work 

tirelessly to defend MSHA’s action in both cases. We are also proud of our successful 

defense earlier this year of MSHA’s rulemaking that established new standards for 

diesel particulate matter (DPM) exposure in underground metal and non-metal 

mines. The DPM legal victory resolved many questions raised by the industry regarding the validity of MSHA’s risk assessment and the appropriate surrogate for 

measuring DPM. SOL continues to assist MSHA with legal advice concerning implementation of the final DPM rule and is consulted, as necessary, on enforcement 

issues. 

Conclusion 

SOL continues to fully support MSHA and Assistant Secretary Stickler’s clear 

message of strong enforcement. The Office of the Solicitor is also working with 

MSHA to ensure timely completion of the Congressional mandates in the MINER 

Act. The attorneys in our office take their responsibilities seriously and are proud 

to do their part in protecting America’s workers. 

Chairman MILLER. Mr. Grayson—Dr. Grayson. 

STATEMENT OF LARRY GRAYSON, CHAIRMAN, DEPARTMENT 

OF MINING AND NUCLEAR ENGINEERING, UNIVERSITY OF 

MISSOURI–ROLLA 

Mr. GRAYSON. Good morning, Mr. Chairman and distinguished 

members of the committee. My name is Larry Grayson. I am a Professor of Mining and Engineering at the University of MissouriRolla and also Director of the Mine Safety Center. I thank you for 

the opportunity to address the committee today concerning mine 

safety and the effectiveness of MSHA’s mine safety programs. 

My insights on these topics——

Chairman MILLER. Dr. Grayson, is your microphone on? 

Thank you. 

Mr. GRAYSON. My insights on these topics have been sharpened 

by last year’s coal mine tragedies and through interaction with 

mine safety experts who served on the Independent Mine Safety 

Technology and Training Commission. The Commission report 

made recommendations on various technologies, strategies, procedures and training and recommended that risk-based design and 

management of major hazards should be done by every underground coal mine in the U.S. to prevent emergencies. We also noted 

that all mine personnel must be involved in establishing a culture 

of prevention. 

MSHA has had a major role in improving miner safety. MSHA 

inspectors provide extra sets of eyes to spot problems, and welltrained inspectors are adept at finding more insidious-type problems. We have owe a great debt of gratitude to our mine inspectors, 

and our day-in-and-day-out efforts are critical. 

49

MSHA’s internal policies and practices change as key personnel 

change. Consistency of enforcement is sometimes problematic 

among districts, mines and even inspectors. The current attrition 

of experienced inspectors will only exacerbate the situation unless 

close attention is paid and proactive action is taken to minimize 

the effects. 

A lack of attention to details by MSHA is highlighted by the Jim 

Walters Resources No. 5 Mine disaster in 2001 when 13 miners 

died. The mine received 41 percent of all citations from January, 

1999, until the explosions occurred on September 23; and they were 

on ventilation, accumulation of combustible materials and rock 

dusting and, finally, roof control. A significant percentage of them 

were S&S. Five withdrawal orders were issued on ventilation and 

eight on combustible materials and rock dusting. Three ignitions 

occurred between August 30 and September 19, while only one occurred in 2000. Each of these critical areas was related to the explosions, and there was significant evidence the greater MSHA 

scrutiny was justified. 

This case study emphasizes the value of risk analysis and implementation of actions to mitigate or eliminate a sequence of events 

from causing a disaster. No coal mine fire and explosions fatalities 

occurred from 1993 through 1999. However, seven explosions occurred in sealed areas during that time. The causes were deciphered but next steps were not taken to deal with the conditions 

under which seals were compromised and to examine how to prevent damage from such explosions. 

We paid the price for the lack of scrutiny in 2006. Sound risk 

analyses of these situations would have detected and addressed the 

vulnerabilities, and a plan aimed at prevention could have been 

started in 1996 following three or four of these events. It is 

MSHA’s responsibility to initiate such scrutiny and any follow-up 

action. 

Many mines do not perform at an acceptable level of safety. It 

is appropriate to target high-risk mines deserving heightened scrutiny and concomitant enforcement without sacrificing adequate inspections of all mines. However, such targeting must be objective, 

risk-analysis based and designed to address major hazards in highrisk mines quickly. 

Investigations of incidents with four or more fatalities should not 

be managed by MSHA. An independent investigative board should 

conduct those investigations. 

MSHA should accelerate the acceptance of technology and equipment approved according to high international standards for permissibility and intrinsic safety. The liability issues should be removed quickly to facilitate this. 

Moving new technology into mines is not generally an easy task. 

We must ensure that the technology will work and not fail in times 

of critical need. Miners must be assured that they will be protected 

as advertised and will never again be in situations that expose 

false expectations about technology. The key is to identify needs 

early and pursue new technology proactively. 

In my written comments I have shared details on a research 

project that illustrates the problem of moving too quickly to demonstrate a new technology for monitoring coal mine dust exposures. 

50

1The Commission report can be found at: http://www.coalminingsafety.org 

It has taken over 6 years since I left NIOSH to reach success for 

the technology, but soon we will be able to rely on the accuracy, 

the robustness and utility of the personal dust monitor to protect 

miners from dust diseases. 

I admire our coal miners deeply, and I affirm that we must provide them a workplace that will protect their lives and livelihoods. 

Our Nation needs courageous men and women willing to meet the 

challenges of coal mining. Let us remove the life-threatening 

vulnerabilities that have been identified, look proactively for those 

yet unidentified and build a risk-analysis-based culture of prevention that will address the major threats. 

I will try to answer any questions you may have. 

Chairman MILLER. Thank you. 

[The statement of Larry Grayson follows:]

Prepared Statement of R. Larry Grayson, Union Pacific/Rocky Mountain 

Energy Professor of Mining and Director, Western U.S. Mining Safety & 

Health Training and Translation Center 

Good morning Mr. Chairman and other distinguished members of the Committee. 

My name is Larry Grayson. I am the Union Pacific/Rocky Mountain Energy Professor of Mining at the University or Missouri-Rolla and Director of the Western 

U.S. Mining Safety & Health Training and Translation Center. Having been a coal 

miner myself for nine years, I very much appreciate the opportunity to address the 

Committee today concerning mine health and safety issues and the effectiveness of 

MSHA’s mine safety and health programs. 

Based on my experience in underground coal mining, as a professor who focuses 

on mine health and safety issues, and as a former Associate Director of mine health 

and safety research in NIOSH, I am here hopefully to help you evaluate the effectiveness of MSHA’s mine safety and health programs. My insights on this topic have 

been sharpened dramatically in the last year since the mine tragedies at the Sago, 

Aracoma/Alma, and Darby mines compromised a dramatic legacy of improvements 

in mine safety. These insights were particularly honed through my interaction with 

mine safety and emergency response experts who served on the independent Mine 

Safety Technology & Training Commission (hereafter referred to as the Commission), which was boldly established by the National Mining Association. 

During the course of the study, it became clear to the Commission that the mine 

safety record regarding underground coal mine fatalities resulting from fires and explosions dramatically changed from the period 1993-1999, when no such fatalities 

occurred, to the period 2000-2006, when the awful toll increased to 37. This latter 

number comprises 40% of such fatalities over the past 23 years, and returned the 

incident rate to over 6 per year, nearly the same rate during the period 1984-1992. 

No single factor can account for the dramatic rise, but rather myriad parameters 

led to it. 

The Commission’s initial focus was on making recommendations to increase the 

chances of miners to survive mine emergencies. Accordingly, in the report 1 recommendations were made relative to communications technology, emergency response and mine rescue procedures, training for preparedness, and escape and protection strategies; however, the Commission noted the need for a fundamental 

change in the way mines address their major hazards. In this respect the Commission recommended that risk-based design and management of major hazards are 

necessary processes for underground coal mines to effectively prevent mine emergency situations. History and experience clearly indicate, in numerous situations 

and conditions encountered, that often minimum compliance with regulations is not 

sufficient to deal with major hazards such as fires and explosions. The Commission 

noted further that the level of risk from such hazards is mine specific, and interventions to effectively mitigate or eliminate the threats of such major hazards must be 

determined by a thorough risk analysis leading to a management plan implementing the interventions. This process should be done by every underground coal 

mine in the U.S., because of the significant threats, and management must involve 

all workers in preventing accidents and injuries. Establishing a culture of prevention is necessary for us to achieve the goal of zero fatalities. 

51

I will now focus on MSHA and give my assessment of the agency’s effectiveness 

in improving mine safety and health in the U.S. First without doubt the agency has 

played a major role over the past 37 years in improving the safety of miners. Statistics bear this out. MSHA inspectors provide ’extra sets of eyes’ to help spot problems 

in a mine, and I have personally regarded their efforts as very helpful. Some underground coal mines can be very expansive spatially, comprised of extensive infrastructure spread throughout miles and miles of tunnels, both of which can deteriorate over time. Good examinations by mine examiners can help spot developing 

problems, especially the more visible ones, but many other problems develop much 

more insidiously, and well trained inspectors are adept at finding such insidious 

problems earlier. We owe a great debt of gratitude to our mine inspectorate, and 

their day-in and day-out efforts are critical. 

The focus of MSHA’s internal policies and practices does change over time, particularly as key personnel change. Consistency of enforcement, including the assignment of the S&S designation, is sometimes problematic among districts, mines, and 

inspectors. The current attrition and loss of experienced inspectors will only exacerbate this situation, unless close attention is given and proactive action is taken to 

minimize the effects. The scrutiny of mine inspectors is critical to ensure the overall 

safety of mine operations, just as is the scrutiny of mine examiners at their mines. 

Lack of attention to details can spell disaster, as we have seen from last year’s tragedies. 

An example of this lack of attention to detail by mine managers is manifested by 

the situation that developed at Jim Walter Resources Mine No. 5 in 2001, when 13 

miners died. An analysis of violations and reportable accidents for that mine shows 

that a number of leading indicators of potential disaster did exist. Specifically, the 

mine had only one reportable ignition in 2000. The first ignition at the mine in 2001 

occurred on May 17th, and then a second occurred on August 30. This was not particularly noteworthy in an experienced miners’ mind. However, two additional ignitions occurred in September, just prior to the explosions on September 23rd. The 

latter two ignitions in quick succession following the one on August 30th should 

have rung a clarion call for immediate scrutiny of potential for danger. 

To carry the example farther regarding lack of appropriate attention to details by 

MSHA, the Jim Walter Resources No. 5 Mine received 1,489 citations from January 

1999 until the explosions occurred in 2001. Of these, citations for ventilation (329), 

accumulation of combustible materials and rock dusting (288), and roof control (112) 

accounted for 49% of the total. The percent of them that were designated as S&S 

were 14.6%, 19.8%, and 64.3%, respectively. Over the same period, five withdrawal 

orders were issued concerning ventilation, eight relative to combustible materials 

and rock dusting, and one regarding roof control. Importantly, each of these critical 

areas was related to the explosions that occurred on September 23rd and the spatial 

extent of destruction. 

There was significant evidence, in my opinion, that greater scrutiny of the safety 

performance at the Jim Walter Resources No. 5 Mine was justified. The sequence 

of events involving unsafe conditions and unsafe acts could have been interrupted, 

thereby preventing the fatalities. Unsafe conditions included the bad roof area, the 

occluded methane, the local explosion, disrupted ventilation, and accumulation of 

methane from the face areas toward the mouth of the section. Unsafe acts included 

leaving the charger near the bad-roof area, allowing the miners to stay in the mine 

after the first explosion, not removing the power from the haulage block system, and 

allowing the miners to return to the area of the first explosion. A simple action to 

move the charger away from a high-risk, bad-roof area could have interrupted the 

sequence of events and prevented the explosions. This case study shows the distinct 

value of analyzing high-risk situations and then taking action to mitigate or eliminate a potential sequence of activities from reaching fruition. 

I also believe that there were many warnings of potential disaster involving 

sealed, abandoned areas of mines. As I noted earlier, there were no fatalities because of fires and explosions from 1993 through 1999, and we all thought that the 

trend would continue. However, during this period there were seven incidents of explosions in sealed, abandoned areas in mines. We were fortunate that the incidents 

did not result in fatalities, but simply ignoring what was happening was, in retrospect, not wise. I know work was done to decipher the causes of these explosions, 

and we understood the reasons, but we didn’t go the next step to deal with the conditions under which seals were compromised and to prevent damage from such explosions. Very tragically, we paid the price for the lack of scrutiny in 2006. I am 

convinced that a systematic approach to risk analysis of these situations would have 

detected the vulnerabilities, and a game plan toward prevention could have been 

started in 1996 after three or four of these events occurred. In my opinion, it is the 

responsibility of MSHA to initiate such scrutiny and follow-up action. 

52

Many mines do not perform at an acceptable level of safety. It is appropriate, in 

my thinking, to target high-risk mines deserving heightened scrutiny and concomitant enforcement without sacrificing adequate inspection of all mines. However, 

such targeting must be objective and based on a sound risk-analysis process, fair 

to all types of operations, and designed to address major hazards quickly. I believe 

MSHA is headed in this direction, and I urge the agency to do it soundly and fairly. 

The U.S. mining industry should be the global leader in mine safety and health. 

As we have become painfully aware from the tragedies in 2006, it is critical that 

a technology scan be done periodically to continuous seek improvement of the level 

of protection of miners to a higher level, thereby increasing their odds of survival 

dramatically in an emergency. It is imperative that this be done proactively, and 

it is recommended that an independent group of safety experts, including some from 

non-mining disciplines, should comprise a technology committee charged to do this. 

The agency to which the committee reports does not matter, as long as the committee functions independently. 

Investigations of incidents with four or more fatalities should not be managed by 

MSHA, in my opinion. There will be an innate conflict of interest in some cases, 

and in other cases MSHA needs the separation from unpopular conclusions in order 

to preserve the perception of objectivity. It is in the agency’s best interest to have 

an investigative board established, so that investigation can be done independent 

of the agency’s influence. 

The time has arrived for MSHA to accelerate the approval and certification of 

technology and equipment approved according to high international standards for 

permissibility and intrinsic safety. The agency knows which standards meet or exceed their own standards, and liability issues should be removed quickly to facilitate 

this. 

As this point I am obligated to note that moving identified technology toward implementation in mines is not generally an easy task. We cannot allow the adoption 

of new technology without ensuring that it will work in the underground coal mine 

environment and not fail in times of critical need. Miners must be assured that they 

will be protected ’as advertised’ and will never again be in situations that reveal 

false expectations about technology. The key is to identify needs early and pursue 

new technology proactively. From my own experience, I can share a technology research project that will illustrate the problem of trying to move too quickly to implement a new technology. 

When I first joined NIOSH in 1997, an ongoing multi-year project was the development of a machine-mounted, continuous, respirable dust monitor (MMCRDM). 

The targeted technology for eventual implementation was the tapered-element oscillating microbalance (TEOM). The technology was used in other industries to monitor dust or particulate matter accurately, and it was selected as the best technology 

for innovative application in measuring respirable coal mine dust levels continuously. After about 5 years of research, the developer of the MMCRDM was able to 

demonstrate its accuracy in a housing that was appropriate for application in an 

underground coal mine. The next step was to test the new technology for accuracy 

against the dust sampling device commonly used for compliance purposes by MSHA 

and mine operators. Eventually and reasonably quickly, the accuracy was confirmed. 

The next step was to test the ability of the new technology to withstand the rigors 

of the underground mining environment. Lab testing was the first step in doing 

this, according to a partnership-based research protocol, where the machine would 

be subjected to vibration and water droplet levels expected in coal mines. In this 

stage, any problems detected would result in modification of the machine to improve 

its robustness. Following success in this stage, in-mine testing of a prototype or a 

few prototypes would be done next, to validate the robustness in the mine environment. Unfortunately the machine was moved too quickly to the in-mine testing 

stage, bypassing the planned lab testing and early field testing, and multiple units 

failed miserably upon implementation for demonstration purposes. The technology 

now forms the basis for the personal dust monitor (PDM), which is near final approval following successful field research. It has taken over six years to reach this 

stage after I left NIOSH, but we will be able to rely on the accuracy, robustness, 

and utility of the PDM to protect miners from dust diseases of the lungs. 

I would be remiss if I did not speak on MSHA’s behalf concerning the impediments the agency faces in moving technology, procedures, policies, and rulemaking 

along more quickly. The U.S. government was established originally with an intricate system of checks and balances placed on its activities, involving each branch 

of government. In rulemaking, the process requires input from stakeholders. The 

stakeholders also have access to legal challenges when strong disagreements on direction occur. This intricate, balanced system ensures that prudent laws, regulations, and decisions are achieved in the end, while involving those most impacted 

53

by the proposed measures. Implementation of many provisions of the MINER Act 

must also undergo this process of public input and interaction with MSHA to move 

the laws into rules. Although it is very frustrating that the desired protections are 

not yet in place, and danger from fires and explosions still exist for underground 

coal miners, MSHA has been following the required process for most provisions. 

Why certain provisions of the MINER Act were not pursued in the past or not done 

more quickly is problematic, for example, concerning development of seal construction criteria in light of past explosions in abandoned areas and evaluation of the 

protections afforded by rescue chambers. 

Finally, I admire our coal miners more than I can say, and I affirm that we must 

provide them a workplace, in often threatening conditions, that will protect their 

lives and livelihoods while also assuring a retirement free from disability. Our nation has a growing dependence on a tremendous natural resource, which will provide stability in our continued economic development, and we need courageous 

young men and women to step up to meet the challenges of coal mining. Let us remove the life-threatening vulnerabilities that have been identified in 2006, look 

proactively for those yet unidentified, and build a risk analysis-based culture of prevention that will not leave any stone unturned to address the major threats. 

I appreciate the opportunity to address you, and I will try to answer any questions you may have. 

Chairman MILLER. Mr. McAteer. 

STATEMENT OF J. DAVITT McATEER, VICE PRESIDENT FOR 

SPONSORED PROGRAMS, WHEELING–JESUIT UNIVERSITY 

Mr. MCATEER. Chairman Miller, Ranking Member McKeon and 

members of the committee, my name is Davitt McAteer; and I 

thank you for this opportunity to present my views about MSHA. 

From 1994 to 2000, I served as the agency’s Assistant Secretary 

and also served for a time as the Acting Solicitor of Labor. I have 

been involved in mine safety and health issues since 1968, following the tragic Farmington, West Virginia, mine disaster. 

Following the disaster at Sago and Aracoma Alma, Governor Joe 

Manchin of West Virginia asked me to lead an investigative panel 

into the causes of those disasters. In July and November of last 

year I produced reports into those disasters, and I submitted a copy 

of those reports for the record today. 

Following the disasters of 2006, the families of the Sago, 

Aracoma Alma and Kentucky Darby victims, this committee and 

the American public asked the question, why hasn’t the Federal 

Government acted to bring about changes in health and safety protections afforded miners? And why aren’t new communications systems, seals, rescue chambers and improved SCSRs been placed in 

the mines? 

While the answer is complex, the bottom line is this, miners still 

lack a wireless, durable phone system; 14,000 alternative seals 

have not been strengthened; and rescue chambers have still not 

been installed. 

Those looking beyond the 2006 tragedies are also mystified that 

MSHA’s regulations to protect miners from black lung is nearly 30 

years old, its asbestos standard is 20 times less protected than 

OSHA’s, and its rules on mine rescue teams are seriously outdated. 

The list of unfulfilled promises to miners goes on and on. 

During the past 6 years, this administration has terminated multiple regulatory undertakings, including important rules on SCSR’s 

mine rescue teams and black lung prevention. 

There is no doubt that the administration’s regulatory philosophy 

plays an important role in whether regulations are issued and the 

54

type of regulations pursued, but that is not the only factor it plays. 

If congressional oversight focuses exclusively on politics, it will 

miss a tremendous opportunity to address a serious problem that 

exists beyond the resident of the White House. 

Before being appointed to MSHA in 1994, I was one of the agency’s harshest critics. When I started the job, I had high expectations in the form of new protective standards; and during my tenure we finalized a dozen significant regulations. Some of these had 

been initiated by my predecessor and others were commenced and 

completed during my term. 

Despite my determination to issue rules and the commitment of 

MSHA’s talented engineers and scientists, I am only modestly satisfied with our regulatory accomplishments. In my case, the faults 

did not fall with the agency’s lack of commitment to miner safety 

or unwillingness to regulate. 

MSHA is a small agency within a large Federal bureaucracy. Its 

mission is only one of many within the Department of Labor, and 

it does not operate in a vacuum. Promulgating workplace safety 

standards is a process fraught with obstacles. It was a problem 

when I was at MSHA, and it will be a problem for the next administration. 

Some of the roadblocks were of the administration’s own making 

and some were created by my fellow lawyers exploiting the regulatory system. When a rule is controversial, and most are, it will 

take 4 to 6 years to complete. In the worst of cases, the procedural 

maneuverings obstruct the process; and those rules are never completed. This unfinished business of protecting miners is the result 

of a broken rule making system. 

Interest groups who have a stake in avoiding or postponing new 

workplace safety rules have the financial resources to bog the system down. There are numerous examples of this in MSHA’s history. But one of the most troubling to me is the mining industry’s 

efforts to obstruct MSHA’s plan to correct the manner in which 

miners’ exposure to coal dust is measured. 

One of my highest priorities was attempting to transform 

MSHA’s regulations to eliminate black lung disease once and for 

all. Our efforts were comprehensive, and one small part included 

dismantling the dust monitoring scheme put into place by the U.S. 

Bureau of Mines in 1971. Under this outdated policy, miners exposed to coal dust are calculated based upon an average of multiple 

samples. You may have two or three dusty jobs in a coal mine, and 

the agency is required to average those miners’ exposure with samples collected from less dusty jobs. More times than not, the average will be less than the enforceable limit, meaning the mine operator does not receive an MSHA citation, and the inspector cannot 

compel the mine operator to correct the problem. 

Beginning in 1991, we attempted to change this policy, but an 

unfavorable decision by the MSHA Review Commission forced us to 

engage in a formal rulemaking. We sought to officially revoke the 

sampling average policy and replace it with the safeguard of a single-shift dust sample. After a 4-year rulemaking process with multiple public hearings, we issued a joint rulemaking with NIOSH. 

The mining industry challenged our rule, arguing that we failed to 

conduct the proper rulemaking. Their challenge was upheld by the 

55

Court of Appeals. We were forced to begin another rulemaking to 

revoke this harmful policy. Regrettably, the rule was not finished 

before I left; and, today, the 1971 averaging scheme remains in effect. 

I described in my written testimony three hazardous situations 

faced by miners in which practical solutions exist today. Those are 

the presence or absence of proximity detectors, hardened cabs on 

bulldozers, and backup cameras on large haulage trucks. These are 

circumstances that kill miners day in and day out over the years. 

We have solutions, and because of the nature of the regulatory system, we can’t get those solutions to be put in place. 

I submit that the current regulatory system is broken, and we 

need to find a new approach to protecting miners’ health and safety. I would suggest the four items for your consideration: 

First, we need a full public analysis of accident, injuries, illnesses 

and near misses, if you would, a national report to Congress on 

health and safety related to best practice. That is, what has been 

done right within an industry, as well as deficiencies in protecting 

miners. 

These best practices could then become a norm to help establish 

the ‘‘duty of care’’ against which an individual company could be 

judged. Even absent a specific regulation, mine operators would be 

on notice that protections exist and are available; and they have a 

duty to act whether or not a specific regulation is in place. 

Second, the establishment of a duty of care responsibility for 

each mine operator. The duty of care would require a thorough 

process of hazard identification, risk assessment and risk control 

and would be coupled with the regulatory system, not replacement 

for the regulatory system. This model has been successfully adopted in several countries, including Australia and Canada. 

Third, incorporating mine safety and health into the production 

of mining equipment, production equipment. This is akin to requiring for the installation of safety equipment on automobiles as part 

of the automobile manufacturers’ responsibility and not the responsibility of the automobile driver. For example, longwall mining machines cost in excess of $50 million and are unparalleled in their ability to mine millions of tons 

of coal. Yet few, if any, safety and health features are designed into 

this equipment. 

Chairman MILLER. Mr. McAteer, I am going to ask you if you can 

wrap it up. 

Mr. MCATEER. I am sorry. I will wrap it up. 

Fourth is permitting a quasi regulatory requirement agreed upon 

by all parties as part of the duty of care; and, finally, for Congress 

to follow the model established in the landmark 1969 Coal Act to 

instruct the industry directly on what is expected of them. 

With these changes I believe we could improve the protections for 

miners and also avoid the Sago, Aracoma and Kentucky Darby type 

accidents. Thank you, sir. 

[The statement of Mr. McAteer follows:]

Prepared Statement of J. Davitt McAteer, Vice President of Wheeling 

Jesuit University 

Good Morning. My name is Davitt McAteer and I wish to thank you for this opportunity to appear before you today. I am the Vice President of Wheeling Jesuit 

56

University where I am responsible for research efforts at the National Technology 

Transfer Center (NTTC) and Center for Educational Technologies (CET). 

In addition, during the past year and one-half, I conducted investigations into the 

Sago and Aracoma/Alma No. 1 Mine disasters in West Virginia at the request of 

West Virginia Governor, Joe Manchin, III, and in July and November of 2006, 

issued reports on those disasters, a copy of each I submit for the record. 

From 1994 to 2000, I served as Assistant Secretary of the United States Department of Labor for the Mine Safety and Health Administration (MSHA) and also 

served as Acting Solicitor for the United States Department of Labor from February, 

1996 to December, 1997. 

I have been involved in mine safety and health issues since 1968 when, following 

the Farmington Mine disaster in November of 1968, I conducted a study and produced a report and book entitled Coal Mine Safety and Health—A Case Study of 

West Virginia. 

I come here today to attempt to address questions concerning efforts to improve 

health and safety in United States for mine workers, but also to propose possible 

solutions to long standing problems facing the Mine Health and Safety Administration and other regulatory agencies. 

Following the disasters of early 2006—the families of the Sago, Aracoma/Alma 

and Kentucky, Darby victims, this committee and the American public asked the 

question of ‘‘Why hasn’t the Federal Government acted to bring about changes in 

the health and safety protections afforded miners, specifically why aren’t new Communication Systems, Seals, Rescue Chambers and improved SCSRs been placed in 

the mines?’’

While the answer is complex, the bottom line is that miners still lack wireless 

and/or protected phone systems, the 14,000 alternative seals have not been 

strengthened, rescue chambers are not yet installed in United States mines, increased numbers of improved SCSRs are not yet available to miners and the mine 

rescue system, although improved, is not equipped as it should be for the 21st Century. We should, however, note that much has been accomplished in terms of improved training of miners on SCSRs, testing of new communication systems, approval by West Virginia of rescue chambers, monitoring of existing seals, a moratorium on alternative seal construction, and a proposal to strengthen the seals which 

MSHA’s forthcoming Emergency Temporary Standard will address. 

Still, those looking beyond the recent tragedies are mystified that MSHA’s regulations to protect miners from black lung and silicosis are nearly 30 years old, its exposure limit for asbestos is 20 times less protective than OSHA’s standard, and its 

rules on mine rescue teams are seriously outdated. The list of unfulfilled promises 

to miners goes on and on. 

There are reasons to suggest that in the past, MSHA officials have been unwilling 

to issue much needed rules, or did not assemble the necessary resources to get the 

job done in a timely way. Without a doubt, during the past six years the Administration has terminated and cancelled multiple regulatory undertakings (See Attachment 11), however, since Sago, Aracoma/Alma, and Kentucky Darby as well as since 

the passage of the Miner Act and as a result of this Congress’s oversight, the agency 

has stepped up its efforts to promulgate regulations, especially those related to disaster relief. 

There is no doubt that an Administration’s regulatory philosophy plays an important role in whether regulations are issued and in the type of regulations pursued. 

But, that is not the only factor in play; if congressional oversight focuses exclusively 

on politics, it will miss a tremendous opportunity to address a serious problem that 

extends beyond the resident of the White House. 

As the Assistant Secretary for Mine Safety and Health from 1994 until the end 

of 2000, I devoted significant agency resources into the development of new MSHA 

rules to protect miners. I came to the agency with a history of being one of its 

toughest critics, and I had high expectations in the form of new protective health 

and safety standards. 

From the time I was confirmed by the U.S. Senate (February 1994) until January 

19, 2001, there were a dozen or so final rules issued by MSHA.2 My predecessor 

initiated some of these projects (e.g., Hazard Communication; Safety Standards for 

Explosives at Metal/Non-Metal Mines; First—Aid at Metal/Non-Metal Mines) and 

we completed them while I was Assistant Secretary. Others were new rules commenced and finalized during my tenure (e.g. Preventing Hearing Loss/Noise Standard; Safety Standards for Underground Coal Mine Ventilation; Training for Stone, 

Sand and Gravel Miners/Part 46). A team of talented MSHA engineers, industrial 

hygienists and analysts, would be pulled together to work on each new rule, and 

typically this assignment was in addition to their regular duties in an MSHA field 

office. These skilled and determined individuals worked diligently to develop sound, 

57

evidence-based and cost-effective regulations designed to prevent miners from suffering injuries, illnesses and death. Despite my determination to issue protective 

rules and the devotion of MSHA’s staff, I am only modestly satisfied with the number of regulatory improvements made during my tenure. In our case, the fault does 

not lie with the Agency’s lack of commitment to miners’ health and safety, or an 

unwillingness to regulate. 

MSHA is a small agency within a large federal bureaucracy. MSHA’s mission is 

only one of many within the Department of Labor, and the highest priorities of 

MSHA’s Assistant Secretary may just be one of many for the Secretary of Labor. 

MSHA is not an independent agency, and it does not operate in a vacuum. But let 

us put this regulatory promulgation problem into context—this is not just a problem 

for this Administration. It was a problem when I was Acting Solicitor and Assistant 

Secretary for MSHA and it will be a problem for next Administrations to come. 

During my tenure, we found similar obstacles and road blocks, some of which 

were the Administration’s own making, some created by the Federal Courts and 

some created by my fellow lawyers exploiting the regulatory system and Federal 

Courts. 

In the best of circumstances, promulgating a new health or safety standard takes 

2-3 years to complete. However, when the rule was substantial and/or controversial, 

it can take 4, 6, 8 or more years from start to finish. In the worst of cases, the procedural maneuvering completely obstructs the process, and those rules are never completed. This ‘‘unfinished business’’ of protecting workers’ health and safety is the result of a broken rulemaking system. Equally troubling was this Administration’s decision mentioned above to drop about a dozen regulatory projects that were in the 

queue, including important rules on SCSRs, mine rescue teams, and black lung prevention. 

As currently structured, MSHA’s system (like OSHA’s) is unable to address, in a 

timely manner, long-standing hazards faced by workers let alone new emerging 

risks. The public policy considerations embodied in the Federal Administrative Procedure Act, Presidential Executive Order 12866, the Paperwork Reduction Act of 

1995, the Information Quality Act of 2001, and their amendments and implementation documents3 as well as other requirements have suffocated the public health 

and precautionary values embodied in the statutes governing, among others, 

MSHA4 and OSHA5. The harsh reality is that those interest groups, which have 

a stake in avoiding or postponing new workplace rules, have the financial resources 

and political clout to impede and/or bog down the current rulemaking system. There 

are numerous examples of this in MSHA’s history, but one of the most troubling 

to me is the mining industry’s efforts to obstruct MSHA’s efforts to correct a deadly 

flaw in the manner in which miners’ exposure to coal mine dust is measured. 

When I was Assistant Secretary, one of my highest priorities was transforming 

MSHA’s regulations on coal mine dust to eliminate black lung disease once and for 

all for U.S. coal miners. Our efforts were wide-ranging and comprehensive and some 

required changes in long-standing regulations. One of the keys to the effort was dismantling a dust monitoring scheme put in place by the U.S. Bureau of Mines (BOM) 

in 1971, which mandated that miners’ exposure to coal mine dust would be calculated as the average of multiple samples. In order for an MSHA inspector to issue 

a citation for excessive coal mine dust, the average of the samples has to exceed 

the exposure limit, plus an error factor. 

As is well known, the average of multiple data points does not accurately reflect 

the value of any one of the individual data points. Likewise, when you have two 

or three dusty jobs in a coal mine (e.g., roof bolters, continuous miner operator) and 

you average these workers’ dust exposure samples with samples collected from lessdusty jobs, more times than not, the average will be less than the permissible exposure limit. The result: the mine operator does not receive an MSHA citation, and 

MSHA cannot compel the mine operator to correct the respirable dust problem, leaving miners, in particular a subgroup of miners, exposed to elevated levels of deadly 

coal dust. 

Beginning in 1991, MSHA attempted to change its enforcement policy to eliminate 

the averaging of dust samples. After an unfavorable decision by the Federal Mine 

Safety and Health Review Commission, MSHA and NIOSH jointly engaged in a notice-and-comment rulemaking to revoke officially the BOM’s 1971 ‘‘sample averaging’’ policy, and provide miners the health protection afforded by a single-shift 

dust sample.6,7 In addition, an Advisory Committee of industry, labor, public health 

scientists and academics was constituted in November 1995 and issued its report 

and recommendations in November 1996. After a lengthy public comment period, 

which was reopened several times, and multiple public hearings, a rule revoking the 

‘‘averaging’’ policy was published in early February 1998,8 after a 4-year public 

process. The mining industry challenged the rule,9 arguing on procedural grounds 

58

that MSHA failed to conduct a proper rulemaking. In September 1998 the U.S. 

Court of Appeals for the 11th Circuit ruled in favor of the mining industry, and we 

were forced to begin the rulemaking process again. To this day, the rule remains 

as it was since 1971, in effect exposing a known set of miners to dust levels which 

we know will result in black lung disease. 

As part of this comprehensive effort, we pursued with NIOSH, the development 

and testing of a continuous dust monitoring system. That effort allowed the introduction in several coal mines the initial, first-generation machine-mounted continuous dust monitor, which proved the concept that real-time continuous dust sampling was possible. These in-mine tests led to the development of the second and 

now third generations of continuous dust monitors, which are person-wearable 

units. Tragically, this equipment has not yet been mandated or implemented into 

U.S. coal mines. While black lung disease has been virtually eliminated in Australia, a recent NIOSH analysis points to the ongoing incidence of new cases of coal 

workers pneumoconiosis among U.S. miners.10 We have the knowledge of how to 

eliminate it. We have the means to eliminate it. What is lacking is the will at both 

the governmental and industry levels. It is a shame on the mining industry and on 

the United States’ mining community that we have not eliminated black lung disease. 

MSHA, like its sister-agency OSHA, finds itself hidebound by a multi-layered system which slows the process, and thus, the implementation of much-needed worker 

protections. Agency staff and senior officials in MSHA, and indeed miners and mine 

operators themselves, know of longstanding hazards faced today by mine workers 

that are causing injuries, illnesses and death for which remedies exist. In fact many 

of the hazards encountered by miners today, are not new, some are the same hazards faced by their fathers and even grandfathers. More troubling, is that for many, 

if not all of these dangers, a remedy exists to reduce or eliminate miners’ risk of 

harm, but is not being put in place. 

The mechanical and procedural requirements relating to dates of publication, public comments, record opening, request for additional time for public comment, etc. 

add months to the process. This is not to suggest that each of the notice and public 

hearing requirements are lacking in merit or not worthwhile; the facts are that the 

system has become overloaded. The search for alternative ways to eliminate these 

risks and dangers must be expanded. 

Two alternatives contained in the Mine Act ‘‘negotiated regulations’’ and ‘‘advisory 

committees’’ have generally failed. Negotiated regulations have proven to be, almost 

without exception, an ineffective path to successful rulemaking in large part because 

they can be stopped at any step of the process by any involved party. Objections 

sometimes come after years of effort, meaning one interest group, either industry 

or labor, can torpedo the whole effort. 

The Act also contains an ‘‘advisory’’ committee option which because of the two 

tiered requirements, first requiring equal membership of labor and industry, plus 

a requirement that a majority of committee members be unrelated economically to 

the mining industry, has proved not only difficult to fulfill but has resulted in a 

near impossibility to create a committee which can successfully report out an agreed 

upon set of recommendations. Even when a committee can agree on recommendations, MSHA must still then proceed with the normal rulemaking process. 

But let us turn to examples of known safety and health risks which we can virtually all agree are causing death, injury and illness for miners. These are problems 

for which solutions or answers exist, but which, because of the cumbersome regulatory process or interest group opposition slows the promulgation of regulatory 

remedies. We rarely create a new way to kill miners, and in the following three examples, solutions have existed for years but the Federal government has been unable to promulgate protective new rules: 

1. Proximity detectors can automatically turn off remote-controlled mining equipment when it gets too close to miners. The problem of putting mining equipment 

operators under unstable roof was solved by allowing them to operate the equipment 

remotely. Currently a number of equipment operators are killed every year when 

they are crushed by moving equipment underground. Yet despite the fact that devices exist which prevent these deaths, they are not in wide spread use in mines 

and no regulations have been promulgated requiring their use. 

2. Hardened cabs on bulldozers that are used on surge piles can save lives. When 

a bulldozer falls into a void on a surge pile, the bulldozer and the miner operating 

the dozer are covered over with the coal or ore. It can take hours to remove the 

equipment and operator from the surge pile, but if the windows on the dozer don’t 

break and the miner has enough oxygen inside the cab, he can survive. Every year, 

there are documented lives saved using this technology, but it is not required by 

59

regulation. A number of companies have installed this equipment but a significant 

portion of the industry has not retrofitted their cab windshields to strengthen them. 

3. Back-up cameras on trucks and haulage vehicles at large surface mines can 

save lives of miners who otherwise are at risk of being crushed when the big trucks 

back up over miners or smaller trucks. These large haulage trucks cost a fortune, 

but inexpensive camera systems which are currently available, are not required by 

MSHA. In the late 90s, I initiated a voluntary program to encourage operators to 

install them, and sadly that program has languished in the last several years. 

Because of the recent mining tragedies, disaster-related regulations have been 

placed front and center and correctly so. However, this emphasis insures that the 

hazards described in the three examples above will not be addressed and more miners will needlessly perish from well-recognized hazards. I propose the following shift 

in regulatory philosophy with respect to mine safety and health problems and solutions. 

The critical point is that the regulatory process is broken and cannot be relied 

on to quickly address real needs for improvements and fast moving changes in the 

modern workplace. Congress and the regulatory agencies themselves, under the current regulatory framework, cannot efficiently legislate or request solutions to every 

one of these workplace hazards—issue by issue. We need to find a new approach 

to protecting miners’ health and safety. Below I have outlined four steps to achieve 

this new approach. 

First, we need a full public analysis of accident, injuries, illnesses, and near 

misses, and possible solutions. If you will, a National Report to Congress on Health 

& Safety, and Best Practices. The Report will annually assess how MSHA, as well 

as other agencies, are doing in achieving their core mission of saving lives and preventing injuries and illnesses, such as in the case of MSHA and OSHA, or improving environmental quality, in the case of the EPA. This Report would also describe 

Best Practices in a particular industry, that is, what is being done right, as well 

as deficiencies. 

These best practices then would become the norm to help establish the ‘‘Duty of 

Care’’ against which an individual company’s efforts would be judged. Even absent 

a specific regulatory requirement, mine operators would be ‘‘on notice’’ that protections exist and are available, and they have a duty to act, whether or not a specific 

regulation is in place. 

The federal agencies themselves are in the best position to assemble and analyze 

the data and should be held accountable for what they do with it. It may be that 

some things are appropriate for a general regulation and this Report would be invaluable in setting priorities. Congressional oversight and public scrutiny is the key. 

Thus, some issues can be addressed through existing mechanisms like our powerful 

private insurance system and traditional methods of corporate accountability. And 

the power of Congress and the press should not be overlooked as another means to 

effect change, but a yardstick is necessary to measure performance and the annual 

Report would give us a yardstick based on factual data and the analysis of trends. 

Secondly, the current regulatory scheme should be blended with the establishment of a Duty of Care responsibility on the part of each operator. Broadly stated, 

the duty of care requires a risk management approach on the part of each mine 

manager, including a thorough process of hazard identification, risk assessment and 

risk control. 

This duty of care approach should be coupled with regulations, not a replacement 

of the regulatory scheme. This model has been successfully adopted in several countries including Australia and Canada. 

At my request and as part of the Sago mine disaster investigation, a memorandum entitled ‘‘Thinking Out-Side-The Box: The Proposed Blended Duty of Care 

and Safety Case Model for Regulation in the Coal mining Industry of Australia’’ was 

prepared by Suzanne M. Weise, Esquire and Professor Patrick C. McGinley (West 

Virginia University College of Law), which I submit for the record (See Attachment 

2). 

This Memorandum describes the generally applicable ‘‘duty of care’’ standard of 

Australian law and a proposal to amend to the existing coal mine safety regulatory 

regime a ‘‘safety case’’ approach found to be successful when applied occupational 

health and safety regulation of other industries in Australia. Relevant to the postSago search for ways to improve mine safety is the active involvement of mine managers in developing mine-site specific approaches to reduction of health and safety 

hazards. 

The Memorandum concludes that in light of the criticism of post-Sago regulatory 

and administrative proposals addressing perceived shortcomings of the existing statutory and regulatory regime, critics and regulatory change proponents should welcome the opportunity to review and critique out-side-the-box approaches. The duty 

60

of care/safety case regime has been successfully utilized in Australia to address 

workplace health and safety issues relating to hazardous waste and off-shore petroleum industries. Australian authorities are examining the safety case approach to 

determine its potential applicability to that nation’s coal mines. The safety case approach is one way that site-specific considerations may be given appropriate attention as critics of post-Sago remedial proposals demand. At the very least, those critics and other interested parties should begin to explore new approaches to protect 

the health and safety of the nation’s miners. 

As the Memorandum indicates, a duty of care model might have limited application in the United States, especially given the differences in production and number 

of mines in operation (i.e., Australia with 100,000,000 tons of coal produced annually v. the United States, with 1.2 billion tons produced) but some model which 

mandates operators to actually engage in the identification of risks and the elimination of them, as part of their ongoing mining responsibilities. These risk assessment requirements would be in addition to the safety and health regulations required of industry by federal and state agencies. The establishment of legal responsibility for the failure to comply with the ‘‘duty of care’’ might help resolve the 

‘‘thorny regulatory issues which tend to be frozen by ossified conventional analysis.’’11

The outcome at Sago might have been significantly different if the operator 

viewed it as his responsibility for managing what was going on behind the seals, 

rather than the ‘‘seal it and forget it’’ approach which ICG management followed. 

Moreover a third solution is to shift responsibility for incorporating safety and 

health remedies into the production cycle, that is, away from the regulatory agencies and onto the mine machinery manufacturers. This is akin to requirements for 

the installation of safety equipment on automobiles is part of the automobile manufacturers’ responsibility, and not the responsibility of the automobile driver. 

For example, longwall mining machines cost in excess of $50 million and are unparalleled in their ability to mine millions of tons of coal. Yet, few if any, safety 

and health features are designed into this equipment. There are no locations to 

store self- rescuers (SCSRs) but instead, miners continue to have to strap these 

bulky boxes onto their belts. Likewise, and perhaps most disastrously, this longwall 

equipment is not engineered or designed to capture the tons of coal dust created as 

an integral part of this high speed powerful cutting machine. Instead, miners who 

are stationed along the 100+ yards of the longwall machine are inhaling coal dust, 

after the fact efforts to control the dust with water sprays and shields are only partially effective at best. Moreover, there is significant lost energy as the coal dust 

is blown into the mined out workings. A vacuum system which captures the coal 

dust could both capture that energy (the coal dust), and dramatically reduce miner’s 

risk of developing black lung and of a coal-mine dust explosion. 

Similarly proximity detectors are not being built into mining equipment purchased today by mine operators. Video cameras providing side and rear viewing for 

haulage truck drivers sitting 25 feet off the ground, are not standard on all equipment, nor are harden cabs with air supply systems. Despite being technologically 

available, these common sense protections are not designed into new pieces of equipment sold to the mining industry. 

The development of health and safety equipment used by the mining industry has 

been historically on a separate design and marketing track from coal production 

equipment. Over the decades, the approach has been to add protections and safeguards to the miners—and often as stop gaps to the hazards, such as respirators, 

hearing protectors, and SCSRs, etc.—rather than to eliminate the problem and 

make the protection part of the production equipment. This disjointed approach, 

which segregates development of the production equipment from the installation of 

safety and health equipment, must change. 

Fourth, innovative ways to regulate must be explored. Simplified quasi requirements agreed upon by all the parties could be made part of the duty of care model 

and failure to comply would open the operator to litigation if he/she failed to adopt 

the industry adopted preventative methods and norms. 

Moreover, Congress could follow the model adopted in the landmark 1969 Coal 

Act, and instruct the industry directly on what is expected for miners’ safety and 

health in the law, rather than directing MSHA to regulate. In a regulatory system 

that is broken and incapable of rapidly and effectively addressing the many hazards 

still faced by U.S. miners, direct Congressional intervention such as was done in 

1969 in adopting dust standards at 2.0 mg3, may be justified, and would not be unprecedented. 

Finally, industry is not prohibited from adopting voluntary standards and joining 

in voluntary education and training efforts. Two models which we undertook inVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
61

cluded: a Comprehension Dust and Noise Training and Sampling Program for stone, 

sand and gravel operations, and the national campaign to eliminate silicosis. 

Under existing Metal/Non-Metal Mine regulations, operators are required to monitor levels of air contaminants and noise, as frequently as necessary, to ensure that 

their engineering controls are working properly. At these kinds of miners, many 

mine operators do not routinely conduct this monitoring, but instead rely on , 

MSHA inspectors, who make inspections twice a year, to monitoring the dust and 

noise at their workplaces. In essence, some operators rely on MSHA to be their industrial hygienist, although MSHA is only on-site twice per year. 

Under an agreement signed with the National Stone, Sand and Gravel Association, MSHA provided used dust- and noise-monitoring equipment to mine operators, 

and provided multi-day training to miners or supervisors so that these small operations would conduct their own exposures samples for these two health hazards. By 

learning to monitoring the mine environment as part of their routine production 

cycle, these miners and operators could assess for themselves whether their engineering controls were working properly. 

The second example was MSHA’s national campaign to eliminate silicosis. It involved the identification of a problem (i.e., excess exposure to respirable crystalline 

silica) especially in Metal/Non Metal mines; education—providing information on 

the need for having and maintaining effective dust controls; and enforcement targeted to the training, controls and most importantly, levels of exposure. This comprehensive model involved both industry and labor and was successful, at least during my tenure, on highlighting the risks from silicosis. 

The changes proposed here would, if adopted in part, address the risks identified 

at the Sago, Aracoma/Alma, and Kentucky Darby mines and would hopefully protect 

miners from the types of disastrous consequences which occurred in 2006. But they 

would also address the long term problems which have hampered the agency from 

addressing ongoing existing problems. 

Finally, these changes could help reestablish the United States as the safest mining industry in the world. 

ENDNOTES

1 Attached Chart prepared under the direction of Suzanne M. Weise and Professor Patrick C. 

McGinley (West Virginia University College of Law). 2Self-contained self-rescuer approval process, joint rule by MSHA and NIOSH, (60 Federal 

Register 30398, June 8, 1995); First-Aid at MNM Mines, (61 Federal Register 50432, September 

26, 1996); Explosives at MNM Mines, (61 Federal Register 36790, July 12, 1996); 

Safety standards for diesel equipment in coal mines, (61 Federal Register 55412, October 25, 

1996); Tuition fee waiver at MSHA’s Academy in Beckley, WV, (62 Federal Register 60984, November 13, 1997); Civil penalties (63 Federal Register 20032, April 22, 1998); Training requirements for experienced miners, 63 Federal Register 53750, October 6, 1998); Changes to operator’s daily inspection reports at surface coal mines, (63 Federal Register 58612, October 30, 

1998); Training for sand, gravel and stone miners (Part 46), (64 Federal Register 53080, September 30, 1999); Coal mine ventilation, (64 Federal Register 45165, August 19, 1999); Protecting miners from hearing loss, noise standard, (64 Federal Register 49548, September 13, 

1999); Hazard communication (interim final rule), (65 Federal Register 59048, October 3, 2000); 

Diesel particulate matter protection for coal miners, (66 Federal Register 5526, January 19, 

2001); Diesel particulate matter protection for metal and nonmetal miners, (66 Federal Register 

5706, January 19, 2001) 3 E.g. Presidential Review of Agency Rulemaking by OIRA (September 2001); OMB Circular 

A-4, New Guidelines for the Conduct of Regulatory Analysis (March 2004); OMB’s Benefit-Cost 

Methods and Lifesaving Rule (May 2003); Information Quality Bulletin for Peer Review (December 2004); OMB Bulletin for Good Guidance Practices (January 2007) 4Federal Mine Safety and Health Act of 1977

5Occupational Safety and Health Act of 1970. 

6MSHA noted that single-shift air samples are part of standard industrial hygiene practice 

and the air monitoring approach used for all other workplace air contaminants sample by 

MSHA and OSHA. This anomaly of ‘‘averaging samples’’ only exists at U.S. coal mines. 7The proposed rule was published on February 18, 1994 (59 Federal Register 8357). 

8The final rule was published on February 3, 1998 (63 Federal Register 5687) 

9That is, the National Mining Association and the Alabama Coal Association. 

10 Centers for Disease Control and Prevention. Advanced Cases of Coal Workers’ Pneumoconiosis—Two Counties, Virginia, 2006, 55(33): 909-913, (August 25, 2006). 11 ‘‘Thinking Out-Side-The Box: The Proposed Blended Duty of Care and Safety Case Model 

for Regulation in the Coal Mining Industry of Australia.’’ Memorandum prepared at the request 

of J. Davitt McAteer, Special Advisor to West Virginia Governor, Joe Manchin, III, for the Sago 

Mine disaster investigation by Suzanne M. Weise, Esquire and Professor Patrick C. McGinley 

(West Virginia University College of Law). 

62

Chairman MILLER. Thank you very much. Thank you very much 

for your testimony. 

We have a vote on. I think what I will do is I will go ahead and 

start my questioning, my 5 minutes; and then when we come back 

on our side we will recognize Mr. Kildee, Mr. Hare, Mr. Rahall, and 

then go down the dais here. But there are two votes. 

I just warn the members, I think that the Leadership’s in the 

process—three votes? The Leadership’s in the process of tightening 

up the clock on the first vote. So the idea that you can leave here 

when there is zero on the clock, I think you will find yourself in 

some jeopardy at the other end. We will see whether that works 

or not. 

Thank you very much, all of you, for your testimony. 

Mr. Stickler, if I might begin with you, earlier today we toured 

a demonstration of the rescue chambers, in-place rescue chambers 

that are now approved for deployment in West Virginia. I think 

100 of them have been ordered in West Virginia. My understanding 

is there are five or six of the models that have also been approved, 

and I think also NIOSH has removed any objection to their deployment. Is that correct? 

Mr. MCATEER. NIOSH has provided a letter to the State of West 

Virginia suggesting that they don’t see—they are not saying in finality, but they don’t see any potential conflict between their approval process and the approval in West Virginia. 

Chairman MILLER. Mr. Stickler, can you tell us where you are 

in the approval process for this? 

You know, I wrote you a letter back in March, I guess it was, 

asking for an emergency rule on this, and that was declined. Can 

you tell us where you are now? 

Mr. STICKLER. As you know, the MINER Act establishes NIOSH 

to do research on refuge chambers and to issue a report by the end 

of this year. MSHA has not simply been waiting on NIOSH. We 

have been working with them. We have several working groups, 

representatives from MSHA and NIOSH working together, looking 

at significant issues regarding the testing of the refuge chambers, 

the development of a protocol for doing the test; and I have been 

told that NIOSH will likely recommend that MSHA do a physical 

test of the refuge chambers before we would provide any approvals. 

I believe that MSHA needs the time that’s provided in the 

MINER Act to address the specific criteria that these refuge chambers should meet and to establish a protocol for testing and a facility to conduct that testing. And when we receive the report from 

NIOSH at the end of this year, then at that time we will move forward. 

Chairman MILLER. You anticipate that would be when? 

Mr. STICKLER. I would anticipate that NIOSH will complete their 

study, issue their report by the end of this year, as mandated in 

the MINER Act; and then there is 180 days in the MINER Act for 

MSHA to make a decision on what would——

Chairman MILLER. That’s the middle of next year. 

Mr. STICKLER. That’s right. 

Chairman MILLER. And what would be completed by the middle 

of next year? 

63

Mr. STICKLER. Well, as I said, NIOSH would complete their 

study by the end of this year. That would be presented to Congress 

and the Secretary of Health and Human Services and Secretary of 

the Department of Labor. MSHA then would have 180 days to 

study the information that’s available and to make a decision on 

what action they would take. 

Chairman MILLER. And you would make those decisions. And 

what would the timetable be after that? 

Mr. STICKLER. Well, I can’t project the timetable. You are talking 

after the 180 days? 

Chairman MILLER. Yes. 

Mr. STICKLER. I can’t project that at this time. 

Chairman MILLER. Well, what would the ordinary course of 

events be—how long would that take you after the 180 days? 

Mr. STICKLER. Well, during the 180 days, not saying that it 

would have to take 180 days for MSHA to make a decision, but 

based on what course of action MSHA would decide to take, that 

would determine the amount of time that would be required after 

that. 

Chairman MILLER. For what purpose? 

Mr. STICKLER. Well, for whatever MSHA decides to do. You 

know, there are various options. You could have a regular rule. 

That’s a possibility. Normally, we found that to do a rule takes at 

least a year. You know, that’s something that we will——

Chairman MILLER. So we are talking two-and-a-half years? 

Mr. STICKLER. That’s a possibility, yes. 

Chairman MILLER. So the situation will be what in West Virginia? These are going to be illegal? 

Mr. STICKLER. Well, in the interim——

Chairman MILLER. Mines——

Mr. STICKLER. I think you are aware that MSHA has issued a 

policy on breathable air which requires mine operators to provide 

96 hours of breathable——

Chairman MILLER. My understanding is—I don’t know if there is 

a picture of the shelter that we toured, but—there it is—that the 

shelter complies with that. That’s the West Virginia standard, too, 

apparently. 

Mr. STICKLER. MSHA is accepting the refuge chambers that West 

Virginia is using, and other mine operators across the country are 

looking at to provide the 96 hours breathable air. 

Chairman MILLER. But you are not going to have a standard for 

two-and-a-half years. 

Mr. STICKLER. For a refuge chamber. I can’t tell you what 

MSHA’s going to do after they receive the report from NIOSH 

other than we will study all the information available and look at 

the facts and decide and make a decision during the 180 days that 

Congress has provided for MSHA to make that decision. 

Chairman MILLER. So that’s a good thing we didn’t say 4 or 5 

years, I guess. I don’t get your sense of urgency. I am lost somewhere. 

Let me ask you, you mentioned in your testimony on the seals 

that you are in the process of a rule on the seals. Again, could you 

tell us where you are with that? 

64

Mr. STICKLER. Well, we submitted that to OMB on May the 8th; 

and I have a verbal confirmation that OMB has cleared that emergency temporary standard today. I would anticipate within a few 

days that will be published in the Federal Register. 

Chairman MILLER. That will be implemented how? There is apparently a significant inventory of seals that may be improperly 

constructed or insufficient under what we have learned. What’s the 

process of going through that inventory and making a determination about the replacement of each? 

Mr. STICKLER. Well, back last year, MSHA issued a policy requiring MSHA inspectors to inspect all the underground seals. There 

are approximately 14,000 seals in underground coal mines. MSHA 

has completed that inspection. We have issued quite a few violations requiring seals to be repaired or replaced. At that time, we 

also required the operators to do a survey of the atmosphere behind the seals and to take appropriate remedial action based on the 

results of those surveys. 

Chairman MILLER. So will this rule speed up that process by 

which remedial action has to be taken? 

Mr. STICKLER. This rule will go beyond the process that was in 

the policy in—regarding establishing new seal strength standards 

for seals that will be built in the future, requiring regular monitoring of the atmosphere behind seals, and remedial action if the 

atmosphere would be at or near the explosive range. 

Chairman MILLER. So—this is layman’s terms—the work list will 

be based upon the previous inspections made. I mean, I assume we 

will go back—under this rule, go back and correct all of those seals. 

Mr. STICKLER. The corrections to the previous—the previous inspections that MSHA has done, those corrections have been made. 

Chairman MILLER. They have all been made? 

Mr. STICKLER. Made as far as repairs and replacement of seals 

that we identified were not built according to standard or because 

of deterioration of the underground mining conditions. 

Chairman MILLER. So they are all in compliance with the new 

rule? 

Mr. STICKLER. Are the existing seals in compliance with the 

emergency temporary standard? 

Chairman MILLER. Yes. 

Mr. STICKLER. No, the emergency temporary standard will go beyond——

Chairman MILLER. That is my point. 

Mr. STICKLER. That is why we are putting out an emergency 

temporary standard. 

Chairman MILLER. So the existing seals are going to be compared 

against the emergency standard, right? 

Mr. STICKLER. The existing seals, we will require monitoring of 

the atmosphere. And if the atmosphere behind the seals is at or 

near the explosive range, then remedial action will have to be 

taken. That could be replace the seal with a higher strength seal 

that would be explosion proof, withdraw the miners from the underground workings, or other options that an operator——

Chairman MILLER. The operators will provide them monitoring 

under guidance of MSHA? 

65

Mr. STICKLER. The operators will be responsible for doing the 

monitoring, and MSHA will monitor on their quarterly examinations of the underground mines. 

Chairman MILLER. Thank you. We will recess for the purpose of 

going for this vote. 

[Recess.] 

Mr. KILDEE [presiding]. I can recall one particular hearing when 

we had a coal mine owner, at least the president of the company, 

testifying and, of course, giving the best face possible of his company’s operations; and he told Carl Perkins, Chairman Perkins, 

that our first concern is the safety of our workers. And he, of 

course, put the best face on the safety of the workers. He put it 

on a little strong; and Carl finally banged the gavel and said, ‘‘Sir, 

when I was 5 years old, my daddy put me in the back of the buckboard, took me over to the next holler for the funeral of my cousin, 

who was killed in one of your mines. So don’t you preach to me 

about mine safety. I know about mine safety or the lack thereof.’’

I always remember that. I learned the law from Carl Perkins, 

but I also learned the morality of putting human beings first, and 

that can be done. 

If there be a mine owner who is so poor they cannot carry out 

the safety of the workers, they shouldn’t be in business. I mean, 

really, when you put people down in those mines, you better have 

the wherewithal to do what’s legally right and what’s also morally 

right. 

That is my preaching for the day. 

Mr. Stickler—I spent 6 years in the Catholic seminary, so I do 

preach a bit once in a while. 

Mr. Stickler, your report on the Sago accident, it is not the first 

to point out that, in an explosion, the walls which maintained the 

flow of air down to where the miners are working and back out 

again can fail in an explosion. I understand that there are what I 

will call stoppings. If this happens, it not only destroys the ability 

of the miners to get air, to breathe, but also slows down the rescue 

operations, because the rescuers need to replace these walls as they 

move forward so they too can be in safety. What is MSHA doing 

to address this well-recognized explosion hazard? 

Mr. STICKLER. Well, that is primarily the thrust of the emergency temporary standard that we are currently working on, is to 

address the seal strength so that future seals will provide adequate 

protection for the miners and to also require that sealed areas be 

monitored and remedial action taken when it is indicated it is 

needed. 

Mr. KILDEE. We are actually talking about the walls of the 

mines, aren’t we? There are two things that tend to make sure 

there is adequate egress and adequate safety, the coal columns you 

leave up and then the walls. What do you do to make sure that 

those walls are adequate? What kind of inspections do you give for 

that? 

Mr. STICKLER. Are you referring to the seals? Is that what you 

are——

Mr. KILDEE. No. 

Mr. STICKLER. There is walls. I am not sure what you mean. The 

coal walls, the ribs or——

66

Mr. KILDEE. The stoppings. 

Mr. STICKLER. Stoppings. 

Mr. KILDEE. Yes. 

Mr. STICKLER. Relation stoppings, relation controls. Those are required to separate the intake escapeway, fresh air escapeway, any 

belt haulage entries, track haulage entries; and the return air 

courses is where the ventilation stoppings are used to control the 

air flow and make sure the air flows where it’s intended to be. 

Mr. KILDEE. Are those inspected regularly to make sure that 

they meet at least the basic standards and specifications? 

Mr. STICKLER. That is part of the quarterly inspections that our 

underground coal miners inspectors do, plus the daily inspections 

on the pre-shift examinations that the mine operator is required to 

do. 

In addition, for those areas that aren’t inspected during the preshift examinations every shift, they are also required to conduct 

weekly examinations. 

Mr. KILDEE. You would consider that a high priority? 

Mr. STICKLER. It is a high priority to do the safety inspections 

correctly, yes. 

Mr. KILDEE. And when you train—when inspectors are trained, 

they are trained in both technology and priorities. Is that considered one of the high priorities in their training? 

Mr. STICKLER. Yes. MSHA’s inspectors are very well trained. 

Mr. KILDEE. Mr. Bertoni, I know you are familiar with the new 

regulations MSHA issued to adjust the way it calculates proposed 

penalty assessments. MSHA has indicated that a key reason for rewriting these regulations is to insure that the more serious violations will receive higher penalties. Yet, as I understand your statement, if a mine operator asks a hearing officer of the independent 

Mine Safety and Health Review Commission to review a proposed 

assessment, the hearing officer isn’t bound to give any particular 

weight to how serious the violation may be. You think something 

needs to be done about this, and could you elaborate on that? 

Mr. BERTONI. I guess the—our main point, I guess initially, is 

that we acknowledge the increase in the penalty amounts that 

MSHA has, you know, put in place. We believe the point system 

for, say, gravity increased from 33 to 88, which will result in at 

least an initial higher penalty. And as that penalty or that case 

progresses through the appeals process, the individual who is doing 

the adjudicating at the appeals level must consider the six factors 

that need to be considered in terms of calculating the penalty 

amount. 

I guess our concern was we know that they are using the six 

statutory factors, but it is unclear how each of those factors are 

being weighted and how the end result penalty, the final penalty 

amount is being arrived at. That was just an area every time when 

we looked at these cases we came away, at least some of them, 

with some question as to how they weighed these particular 

amounts. And that was—it was not clear how these penalties were 

ultimately——

Mr. KILDEE. So there is a lack of clarity in that area then? 

Mr. BERTONI. In our review, we found there was a lack of clarity, 

at least in some cases, in some fairly large cases. 

67

Mr. KILDEE. Thank you very much. 

Mr. McKeon? 

Mr. MCKEON. Thank you, Mr. Chairman. 

Dr. Grayson, there has been a lot of discussion about refuge 

chambers that are used in the underground coal environment. 

Have these units been tested underground? Have they experienced 

human testing? What, in your opinion, should be the appropriate 

study protocol to test these chambers? And, finally, do you have 

any concerns about the use of these chambers? 

Mr. GRAYSON. Actually, I did participate in the approval process 

for one——

Mr. MCKEON. Is your mike on? 

Mr. GRAYSON. Yes, but I am probably not speaking loud enough. 

Sorry. 

I did participate as the professional engineer on one of those rescue chambers. What we had done is we looked at the criteria that 

are required by the State of West Virginia and then did various 

types of analyses to make sure that all of those things that were 

specified were met according to the analysis. 

One particular rescue chamber was placed into an explosive mixture and tested to make sure it could at least handle 25 psi overpressure. And, actually, it was around 30. That is the only one to 

my knowledge that was actually tested in an explosive environment. 

Again, it was an engineering type of analysis, including on the 

temperature rise and heat transfer and stuff of this nature. That 

is of concern about the miners who may be in there. There was a 

convergence of the analyses to show that the temperature would be 

maintained below 95 degrees in three different analyses converged 

among the five different chambers that were analyzed. 

So that gives some credence to the validity, if you will, of the calculations. But no man test has been done, just to make absolutely 

sure that if the miners are in there, indeed, the temperature will 

be maintained and then the oxygen-CO2 balance would be maintained. 

Mr. MCATEER. Mr. McKeon, if I might speak to that question, 

please. 

Mr. MCKEON. Sure. 

Mr. MCATEER. The State of West Virginia analysis of these devices relied in part on the U.S. Army’s tests that were done with 

some of these same kind of or similar devices, as well as some 

NASA tests, and relied—and borrowed that—those tests. They did 

not undertake human testing, but in fact relied upon the tests that 

were done by those other two agencies. 

Mr. MCKEON. Okay. Dr. Grayson, your testimony discusses the 

development of the machine-mounted, continuous, respirable dust 

monitor. Because the research, in layman’s terms, essentially 

skipped a step, the dust monitor didn’t perform in the underground 

coal environment. Can you discuss why that step was bypassed and 

what cautionary tale that tells us today about not skipping steps 

in the scientific process? 

Mr. GRAYSON. Yes, I can elaborate on that. 

Research for new technology that has been applied elsewhere but 

not actually tested in a mine environment does require some pretty 

68

good steps and protocol to make sure that once the—in this particular case, once the accuracy is attained, both by the manufacturer and then in the test chamber, then before we actually place 

these into the mine environment, where there is quite a bit of vibration and water droplets and things of this nature, we really do 

need to be sure that it is going to have a chance to survive that 

mine environment. 

So the protocol had called for some laboratory testing and then 

later on some in-mine testing with one or two prototypes to be sure 

that the robustness would be achieved. And then if we did see any 

problems, either in the laboratory or in the mine, then we could go 

back and modify the design so they could better withstand the vibration and water droplets and other challenges that might show 

up from the mine environment. 

What happened was that as soon as the prototypes—I think 

there were 10 of them altogether that were created. As soon as 

they were created, we did get some pressure to go ahead and move 

them into the mine environment and sort of do a demonstration, 

if you will. And at the same time we were doing the demonstration, 

we were kind of checking the robustness and see how well they 

would do. Unfortunately, all of the five monitors—I believe it was 

five of them; it might have been six—anyway, all of them were 

non-functional by the end of a month. One of them failed on the 

first shift and primarily because of water droplets. 

So even though we were able to get them in the mine, it then 

quickly became more of a development project rather than a research project because we violated the research protocol. And then 

at that point in time we had a parallel path, where we were doing 

the personal dust monitor and we had a partnership that was set 

up on both of these and had put together the protocols for the research on both of those. And the other one on the personal dust 

monitor, the protocol was followed to fruition. And now we are, you 

know, very, very soon—we have done all the field testing as well, 

and they are robust, they are accurate, and we will soon have those 

implemented. 

But the other particular technology then became pretty much 

something that industry, meaning the manufacturers, would have 

to work on with MSHA in order to get the robustness that was required in the mine environment, in our opinion. 

Mr. MCKEON. Have those been pulled out then? 

Mr. GRAYSON. The machine-mounted dust monitors? 

Mr. MCKEON. The ones that—no. 

Mr. GRAYSON. The personal dust monitors? 

Mr. MCKEON. The ones you put in that failed. 

Mr. GRAYSON. Yeah, they had to be pulled out. 

Mr. MCKEON. They are all gone? 

Mr. GRAYSON. Yes. 

Mr. MCATEER. Mr. McKeon, if I could speak to that issue. I was 

the assistant secretary during the time these tests were being conducted. I was the one who urged that these devices be put underground and was driven, in fact, by my knowledge of a number of 

miners who have suffered from black lung disease. And the urgency that that gives you when you have—when you face the problem of seeing and continuing to see that we have in this country 

69

new cases of black lung disease, when other countries have eliminated the disease entirely. 

I am struck by two points that Dr. Grayson makes. The latter 

point that soon these devices will be underground. ‘‘Soon’’ was now 

10 years ago when they first said that soon they were going to have 

them. We still don’t have those devices. 

Secondly, we didn’t take all 10 devices underground. We took a 

sampling. It was four devices that we took underground, and we 

wanted to see them tested. The protocol was not violated from the 

standpoint of all the devices were not taken underground, but we 

said that NIOSH’s approach in this matter lacked the urgency necessary to address this problem. I would do it again tomorrow. It did 

not slow the process down in any way, shape or form. It did not 

slow the development down. That development still isn’t there yet 

today. 

Thank you. 

Mr. KILDEE. The gentleman’s time has expired. 

Mr. Rahall? 

Mr. RAHALL. Thank you, Mr. Chairman. 

Thank each of the panelists for their expert testimony today and, 

most importantly, your commitment to coal miner safety. 

In response, Davitt, in response to your last comment, I recall 

that very well, and certainly commend you not only for those efforts but your efforts in West Virginia to insure that no more disasters occur in our State. 

You know, there are so many issues, all of which have been 

touched upon already by the GAO, the fines, rescue teams, the loss 

of inspectors, the process that we go through for a safety inspection, questions galore in each one of those areas. Suffice it to say, 

in numerous areas we have had to be defensive in the Congress 

over the last 6 years to prevent any degradation or raising of dust 

level standards, for example, in our mines. 

That was a roll call vote we had on the floor of the House many 

years ago. We had to scream and yell when certain regulations 

were rescinded that allowed belt entry air, for example, to be used 

as a ventilation vehicle. 

But that is not the purpose of my questions or the purpose of today’s hearing, so far, anyway. I would like to follow up on Chairman George Miller’s questioning, very good questioning. 

We in West Virginia are making tremendous advances. We are 

pushing ahead. We are not waiting for any deadline to be at our 

doorstep tomorrow morning or any regulation that tells us we have 

to do something. We are doing it because we are concerned about 

coal miners’ health and safety. Governor Manchin has taken the 

leadership, and Davitt McAteer is following through. 

But what I want to ask you, Mr. Stickler, is, because West Virginia is taking such fast action, it appears it is causing problems 

for us as far as long-term Federal compliance. We have heard of 

our commitments to these refuge chambers. We have heard of our 

movement in other areas. We are moving ahead rapidly. It is requiring operators, many of whom are undertaking it very legitimately and commendably. They are investing millions of dollars in 

these new technologies. But they have a fear. 

70

And there are others who are not doing such investments because they are using the excuse, what if MSHA 2 years from now 

or on down the road comes up with something different and we get 

told we are bad boys then and get fined? There is that uncertainty, 

legitimate uncertainty, that operators are facing. They are afraid 

that you will come out with regulations making whatever technologies they invest in today obsolete down the road. That legitimate fear, as anybody would be afraid. 

The State is trying to get MSHA to allow operators some kind 

of cushion so that the West Virginia technologies that we are moving ahead on of our own volition and concern for miners’ safety, we 

are looking for some type of cushion so that these technologies to 

be considered compliant for today’s time and then newer technologies are approved by you in the future. Are you in any way attempting to insure our operators that they won’t get fined or they 

won’t be considered obsolete and all the investments they are making today being thrown out the window? 

Is there some type of commitment or some type of assurance, 

some type of process, partnering, if you will, whatever you want to 

call it, being put in place to insure operators that they won’t be, 

2 years down the road, told everything you have done is wrong? 

Mr. STICKLER. Well, we have worked together. Representatives 

from MSHA have participated as far as some of the work that West 

Virginia did in the area of technology, the refuge chambers. 

We have recently met with representatives of West Virginia to 

hear some of their concerns. But, at the end of the day, MSHA’s 

responsibility comes from the direction of Congress; and Congress 

has specified, for example, two-way wireless communication from 

the surface to underground miners that may be trapped. And I 

don’t think that we should or could move away from the definition 

that Congress has provided and the time frame that Congress set 

to have this technology in place. 

Mr. RAHALL. So it seems you are telling me that you need more 

legislative direction from Congress then, when I would say what we 

have had on the books is sufficient. It is only what is on the books 

that ought to be implemented. 

Mr. STICKLER. What I am saying is we are intending to follow 

the direction that Congress provided in regard to requirements for 

technology. 

Mr. RAHALL. You want us to mandate these refuge chambers? 

Mr. STICKLER. I am not going to—I can only tell you that I am 

committed to implementing and following the process that Congress has put in place. 

Mr. KILDEE. Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. 

I thank the witnesses for their testimony, for being here today, 

and for your commitment I think across the board to improve 

miner safety. 

I say to my colleagues, Mr. Rahall and Ms. Capito, if she were 

here, that I am not the least bit surprised that West Virginia is 

proving to be more agile, more nimble, more responsive than Federal bureaucracy. But that would apply in many cases on many 

subjects. It is an expectation. Federal bureaucracies move slowly. 

71

And I want to explore that just a little bit. I am not excusing it, 

because I share the frustration that everybody else has. 

I want to go back to the subject which we have talked and talked 

and talked about, and that is these shelters. I, too, went and visited the one that is over here on the Capitol grounds, and it is pretty neat. It looks like a really good idea to me. In fact, that is what 

I said to the folks over there. 

But it was also explained to me while I was there that changes 

are already being made to this chamber. It is being reoriented, it 

is being strengthened, thicker steel, more blast protection, and so 

forth. 

So it seems to me we are sort of caught right now in do we want 

something now—and I would think if I were a miner I would want 

something now—or do we want something better later? And that 

is the trap that we fall into in so many ways. It is like body armor 

for troops. Do we go with the best that we have? Do we wait another 4 or 5 years and get something better, another 4 or 5 years 

after that? You would rather have something than nothing. 

So the question—I am just following up on Mr. Rahall—what is 

it we can do to allow the employment, deployment of these shelters 

and still provide some protection, if you will, for those companies 

that are willing to put them in? 

I don’t know that we can, frankly, because I know I can imagine 

the outcry should it prove that one of these shelters where miners 

have sought refuge in is inadequate, has failed. There would be an 

outcry, unquestionably lawsuits up and down the street. 

But I am just sort of throwing it out for any of you. Is there a 

way that you can suggest which we can do something in statute or 

something we can do that would allow mines to employ what the 

best technology is that they have at hand today? Recognizing that 

there is going to be something better later. Because, whatever it is, 

it is going to be obsolete. There is just no question about it. 

Is it going object obsolete next year or 5 years from now or 15 

or 20 years from now? What is it we can do to allow the employment of this technology? From anybody? 

Mr. Stickler, you are sort of on the spot here with the——

Mr. STICKLER. Well, we currently allow operators to use the refuge chambers that are on the market today as a way to comply 

with the 96 hours of breathable air that MSHA is requiring. 

Mr. KLINE. By the way, where did we get the 96 hours? Where 

did that come from? 

Mr. STICKLER. Well, that was a policy that MSHA set. We did research on the disasters that have occurred in the past to determine 

how long it took rescue teams to locate the miners. We also looked 

at situations such as, when you have a fire or explosion, particularly, how long does it take for the mine atmosphere to stabilize 

enough that you can get accurate measurements to safely send rescue teams into the mine? And we thought that the 96 hours would 

provide that. 

Mr. KLINE. Okay. Mr. Rahall, if you would like, I will be happy 

to yield back to you. I am not sure we got to your—to the answer 

to your question. I don’t know if you want to pursue that any further. I am trying to look for a way to make this work. 

72

Mr. RAHALL. Let me commend MSHA on the 96 hours. That is 

beyond the West Virginia 48 hours, and I appreciate it. Let me give 

the rest of the panel a chance to answer the same question. 

Mr. KLINE. All right. 

Mr. MCATEER. Mr. Chairman, if I might, this has been a subject 

that we have been concerned about for some years. We get a piece 

of safety equipment, we put it in the mines, and then there is no 

progression because the industry is small in terms of numbers. 

There is not a marketplace-driven kind of renewal process. And it 

has been a concern for a number of us in the industry. 

Two parts to—the answer to my question is in two parts to you, 

though. One, we need to act on what we have now, recognizing that 

it is not perfect. It is not a perfect world. But we need to get chambers underground now. 

Then we need to continue to kind of research and to kind of develop—this same kind of ongoing kind of development needs to be 

done, both at—the National Research Council study, recent study 

of NIOSH’s actions suggest that they need to do some kind—there 

needs to be some mechanism to try and get us to get newer devices 

on an ongoing kind of basis. There isn’t such—there is not such a 

program that exists today. 

Mr. KLINE. Okay. I see, Mr. Chairman, my time has expired; and 

maybe Mr. Grayson wants to chime in as well, which is certainly 

fine with me. But it seems to me, with your indulgence, it looks 

like we are still in that trap. If Mine Safety—MSHA was to come 

forward and mandate this and it turns out they are not adequately 

tested and they fail, it would be a catastrophe. 

I yield back. 

Mr. KILDEE. Thank you. 

We have two votes. Ms. Woolsey, you want to take your 5 minutes now? 

Ms. WOOLSEY. I would. Thank you, Mr. Chairman. 

Mr. KILDEE. The gentlelady from California, Ms. Woolsey. 

Ms. WOOLSEY. I want to briefly comment on the testimony. If I 

were one of the families in the audience and I was listening to Mr. 

Stickler, I would be out of my mind in frustration over the lack of 

urgency of your answers. Come on. This has been years. We have 

had deaths. 

Best technology versus future technology. Obsolescence, it is 

going to happen. But a good-faith effort has to be made to ensure 

that industry, mining industry, any industry, is doing the best they 

can at that particular time, not risking doing nothing in order to 

get the best later. That is always going to be moving away in front 

of us. And I would assume that every industry has budgets for upgrading for efficiency and safety and making things better. So the 

mining industry is an industry. Let us help them figure out how 

to stay current and keep the workers as safe as possible. 

Prevention is one tool. Certainly inspection is a great step. Accident reports and reviews of what happened during an accident is 

another step. Near misses, if they are reported—I hope they are in 

this industry—that is something that might have happened that 

didn’t cause a huge problem but could have, we need to learn from 

that. 

73

And also learning from the workers. We had a mine hearing last 

month and heard testimony from these wonderful women that are 

here and the families and the widows of the miners and from miners themselves; and we learned that these miners and their families are reluctant to come forward to report health and safety violations in mines because of their fear of punishment, of being 

blacklisted. 

Yesterday, my subcommittee, Workforce Protection Subcommittee, had a hearing on private whistleblowers; and we had 

Jeffrey Wigand, who blew the whistle on big tobacco, and John 

Simon, who has a complaint about trucking violations. They told 

their stories. They were really very brave. 

And I hope you agree with me that one important element of 

mine safety is to make it possible for the miners who are there day 

in, day out to come forward to report health and safety violations 

without fear of retribution. So I would like to open it up and ask 

you each how you think we can make that process more open, 

safer, and actually learn from it as our miners come forward and 

tell us where they see safety problems. All right, Mr. Grayson? 

Mr. GRAYSON. If I may, I did want to follow up on the rescue 

chamber idea, too. I think all we need to do is think what would 

happen if a similar explosion occurred today and they decided, the 

miners decided in their own minds that they cannot get out? We 

would be where we were. 

Ms. WOOLSEY. Well, I don’t want to go off on that other question——

Mr. GRAYSON. I am going to go on to that, too. 

Ms. WOOLSEY. Okay. 

Mr. GRAYSON. I am going to go on that point next. I just wanted 

get that one in. 

Because, right now, they would have to build up a barricade 

again, and it would not be that great. 

Ms. WOOLSEY. Okay. Answer my question on how to make this 

so they are not blacklisted. 

Mr. GRAYSON. Well, in the commission report we did note that 

there is a minimum level of safety performance that all operators 

should follow; and we have specified in there——

Ms. WOOLSEY. When they are not and the worker complains 

about it, how does that work? 

Mr. GRAYSON. If they do not, they should not be in the business. 

We also agreed to that as a commission. 

So, with that said, we need to be much more progressive in the 

way that we, number one, perform; and if they can’t perform to 

that level they should be out of the business. And number two, target them. Then, using the safety statistics, violations included——

Ms. WOOLSEY. Okay. You are not answering my question, Mr. 

Grayson. Mr. McAteer will. 

Mr. MCATEER. The need for protection is profound. The Mine Act 

has the most far-reaching protection available to any worker in the 

country. The difficulty is that the workers have not had a—and 

don’t have a way to get that—exercise that right; and the agency 

has not been strong enough in endorsing or in, A, educating and, 

B, in following up with those kinds of complaints. 

74

The agency has a role, and the individual miner has a role. The 

difficulty we have is that they are in remote areas, and it is very 

hard for you to get miners to come forward with claims and to protect them when they do. 

Mr. KILDEE. We have three votes pending on the floor, and we 

apologize, but we shall return. I hope you can remain. This is a 

process around here. I have been in it for 30 years. It doesn’t work 

perfectly. But if you could remain, I know Mr. Miller wants to come 

back and the other members. 

You voted already? Come take the chair. 

Mr. PAYNE [presiding]. Thank you very much. 

I, too, am disturbed at the lack of urgency. It seems like ever 

since I have been a little boy I have been hearing about mine tragedies. 

I remember the first labor leader I ever heard of was John L. 

Lewis. I mean, he was a person that was bigger than life. And I 

lived in an urban center that didn’t know anything about mining. 

But it was problems then, there seems to be problems today, and 

we still seem to have a lack of urgency that we need. 

I wonder also about the communications. I understand that in 

the MINER Act they were talking about some kind of communications, wireless two-way communications. Could someone tell me 

what type of communications there are currently available when 

miners are trapped? Is there any way they can communicate with 

people outside and any more effective way that could be done? 

Maybe, Mr. Stickler, you might be able to bring me up to date 

on that. 

Mr. STICKLER. The Mine Act regulations require——

Mr. PAYNE. I can’t hear you, sir. 

Mr. STICKLER. The Mine Act and the regulation requires two-way 

communications from the underground workings to the surface. 

Recently, we have required mine operators to install a redundant 

system; and that is accomplished by installing the communication 

lines in separate air courses. So if there would be a roof fall or a 

fire in one air course, a communication line would be protected in 

the second air course. But these systems, most of them require a 

hard wire, or all the ones underground today require a hard wire 

system to communicate from underground to the surface. 

To our knowledge, there are no purely wireless systems that you 

can communicate from the surface underground without having underground hard wires or antennas. 

Mr. PAYNE. Mr. McAteer, could you tell us what West Virginia 

is doing? 

Mr. MCATEER. The present system in West Virginia, as well as 

in the country, is that we are using the cable wire system that has 

been in place for 40 years. We haven’t made the change. 

Since Sago, there have been examinations of devices; and a number of those show promise. First is the leaky feeder system, which 

is, in effect, a sending a signal down that leaks, in effect, and can 

be picked up then by phones that are wirelessly connected to that 

leaking system. 

Second is dropping nodes and—putting a node system down so 

that every so often you put in a node system. That shows promise. 

75

A third system, which is from your State of New Jersey, is the 

Kutta system, which is a system that goes on a blended system 

that goes on any—I am sorry, steel or metal object and can in effect 

use a leaky feeder or use the frame of a conveyor belt or any one 

of those others. That shows tremendous promise as well. 

Those three systems are being tested. They are being proto-tested in some mines and have been tested in West Virginia, and we 

expect to see some of those put in place this summer. Those are 

hopeful systems that will get us to a system that will provide us 

with some better communication. It will not be entirely wireless. 

There is some wire connected to it in some way. But those systems 

are the ones that are being looked at. 

Mr. PAYNE. Let me thank you very much. Since the time is running late, I am going to have to adjourn soon. 

There is—I understand, Mr. Holt, in your district there is a system being tested. Do you want to respond to that? 

Mr. HOLT. Yes, Mr. Chairman, if I may. 

I come to this not just as a scientist who is interested in the technology that comes out of Fort Monmouth in New Jersey but as 

someone who was raised in West Virginia. I grew up there. My father, who many years ago as a U.S. Senator was known, as people 

from that area tell me, as one of the best friends the miner ever 

had. 

I am particularly interested in this communications because 

when you hear the stories about lost opportunities in mine accidents, in many cases it traces to poor communication. I am so 

pleased that last Congress we appropriated $10 million in emergency supplemental money for NIOSH; and there is now several 

million dollars going, as you mentioned, to the Kutta system and 

to various other wireless communication systems and interruptible 

and restorable communications systems. So I thank the chairman. 

Let me just finish by saying all of the discussion today about 

whether there is sufficient authority to implement the MINER Act 

rapidly are just excuses. We have got to implement that immediately on a fast pace. 

Thank you, Mr. Chairman. 

Mr. PAYNE. And I couldn’t concur more. 

Let me commend the gentleman from West Virginia, Mr. Rahall, 

for the interest and concern that he has had; and I am sure that 

has had a lot to do with the speed in which West Virginia is moving. In this instance, the States are certainly moving much more 

quickly than we are at the Federal level, but this is too important 

to have a bureaucracy turning down. 

People’s lives are at stake. We are talking about increasing fossil 

fuels. The mining industry is not going to get any smaller in the 

next immediate future. We need to act more swiftly. 

With that, the hearing will stand recessed until the votes are 

concluded, about 10, 15 minutes. 

[Recess.] 

Chairman MILLER. Thank you, everybody, for your patience with 

these. We had a number of unexpected votes on the floor. 

I would like now to recognize Congresswoman Shelley Moore 

Capito. 

Mrs. CAPITO. Thank you, Mr. Chairman. 

76

I want to thank you all for your patience in our votes and recesses and all that. I know it is frustrating, but that is the way we 

live here. 

I had a couple questions. First of all, the one I am interested and 

mystified by or one of the issues is the communications issue. I 

know that there have been 137 communications and tracking proposals, 51 applications, 19 approved systems, 15 remodifications 

and only 4 new systems. And I read in some of our briefing papers 

that we remember Chairman Norwood when he said, if we could 

talk to somebody on the moon, why can’t we talk to somebody underground in a coal mine? 

We want to help with these technologies and assist with the creation of these technologies. Where are we on this? I certainly hope 

we won’t take the—I think it is 3 years allotted for this to seek 

completion of this. Can you—anybody—or, Mr. Stickler, could you 

start on the status of the wireless technology? 

Mr. STICKLER. We are looking at that. We have several systems 

that we have. 

Mrs. CAPITO. Hit your mic, please. 

Mr. STICKLER. Is the mic on now? 

MSHA has been involved in evaluation of two-way communications. We have witnessed a demonstration, and we have tested approximately 19 different systems. All of the systems that we have 

tested to date, have been presented to us and that we are aware 

of depend on a hard-wire communications system, where there 

have not been any systems that have 100 percent two-way wireless 

that we are aware of. But we are optimistic, we are hopeful that 

the activity that is ongoing, and several companies are working on 

them, and our hope is that they will develop a two-way wireless 

system that we can communicate from the surface to an underground miner. 

We are trying to identify what is the next best option, and I 

think in some part it is going to be a combination of components 

from some of the best systems that are available and interlaying 

those systems on top of each other and building redundancy. 

Mrs. CAPITO. Does anybody else have a comment on that? 

Mr. MCATEER. Congresswoman Capito, there are three conceptual processes that have led to a number of companies to build systems. One is where you take a telephone line and you feed off of 

that onto a wireless connection. 

A second is you put up a series of nodes, not unlike the satellites 

you now use. You place those in the ground and you then bank off 

that. 

And the third is a hybrid system that we have talked about a little earlier—perhaps you weren’t here today—that a consulting 

group out of New Jersey has developed a medium frequency system 

that uses any, basically, metal structure in the mine and can communicate through that. 

None of these systems that we have today, as Mr. Stickler has 

indicated, is entirely wireless; and I don’t think we will get to an 

entirely wireless system in the next couple of years. I think that 

that is a goal, but I think that, as a practical matter, we can get 

to a wireless—a system that is sufficiently wireless that we—given 

the types of explosions that we have, that will make us be able to—

77

that has redundancies, that has an ability to shift, as you do with 

your own cell phone, to shift from one carrier to another, if one 

goes down. That kind of system will then be available to the miners 

in the near future. 

And the old maxim of the enemy is the perfect of the good, we 

need to put the good in and continue to search for the perfect. 

Mrs. CAPITO. I think one of the things at Sago which was extremely tragic to all of us was the fact that they were there. Had 

they had the ability to communicate, they might be sitting here 

today; and I know we all agree that that is a tremendous tragedy. 

I would also like to associate myself with the question that my 

colleague from West Virginia asked on the development of the portable chambers for air that West Virginia has developed and put a 

stamp of approval onto. I think it is extremely disheartening to 

think that our companies are following through on their agreement, companies are buying them and installing them, and for 

them to come in and raise a question for the viability I think presents a real conundrum for a lot of our West Virginia mining companies. 

So I would just like to say that I share his concern on that. I 

don’t really have a formal question on that. 

I have two other little questions. The GAO report mentioned that 

NIOSH and MSHA don’t have as good a coordinating relationship 

and need to build a memorandum of understanding. Certainly in 

terms of speed, of getting good results, this is something that we 

should move forward on; and I would like to ask Mr. Bertoni and 

Mr. Stickler, any kind of views on that? 

Mr. BERTONI. Our position is that they form a coordinating 

mechanism like an MOU, is the way it should be proceeding. 

I think in talking about a couple of these I should say highstakes technology issues today, the rescue chambers and some 

other things that we talked about, I think there is opportunity here 

for them to work together, to be in early, not to wait for the outside 

parameters of what the MSHA calls them to do to reach some final 

decisions for analysis, but, in many cases, do some interim analyses, work together on an interim basis to meet some milestones, 

talk along the way so that they are in a better position sooner rather than later to make a determination on, say, rescue chambers. 

But, in general, yes, we believe that formal coordination MOU 

will go a long way towards ensuring that they coordinate at least 

going out into the future years, which is going to be substantial retirements and turnover in both these agencies over the next several 

years. 

Right now, coordination is okay. It works in many respects. But 

it is built on long-standing professional relationships that have 

built up over the years in units in MSHA, in NIOSH; and if those 

folks were to leave and retire, a more formal agreement with an 

MOU that specifies who will do what, what are the areas of authority, where are the areas where they overlap, what are the demarcations, they are going to be in a better position to come up with the 

best products and the best safety standards going forward. 

Mrs. CAPITO. Okay, if I could just ask one more question, Mr. 

Chairman; and this is one I spoke with the Sago families about just 

briefly. 

78

I said, if you could be up here and ask one question, what would 

you ask? And this is going to come as no surprise, I don’t think, 

to anybody on the panel. But their biggest frustration, and I think 

it is a frustration shared by a lot of us here, is why does everything 

move so slowly? Why are decisions not made more quickly? Why 

are regulations that are put into place not enforced more rapidly 

or with more teeth? 

I suppose, in my opinion, there is probably not a real rational explanation for that. I mean, we can all say, well, that is the way 

government works, and the wheels of government turn slowly. But 

for us in West Virginia who are all mining families, even if we 

don’t have somebody who mines every day, a slow response is an 

inefficient response; and in our view, at some points, it is a hurtful 

response. 

So I would give Mr. Stickler—obviously, MSHA is where we are 

looking at this—what would you say to the families? Why do things 

move so slowly? 

Mr. STICKLER. If I could have just a moment, please, to go back 

to your previous question as far as the cooperation and working relationship between MSHA and NIOSH. 

I know that we have a very cooperative working relationship and 

a teamwork between MSHA employees and NIOSH employees. 

Many of our employees participate in work groups with NIOSH, 

working together on trying to solve some of the same problems and 

address the same issues. 

I have known Dr. Coburn for years. He is a personal friend. I 

think we have a very good relationship. I have met with NIOSH 

several times. He has been down to MSHA. I have been to the 

Pittsburgh research centers for various meetings. We are working 

on a memorandum that—an MOU that would memorialize the good 

relationship that we currently have to preserve that for the future. 

As far as moving quicker on items, I would have to say that a 

big part of the focus is on quality instead of quantity. We want to 

make sure that we get it right; and the process also includes involvement, participation, comments from outside groups. 

When we are in the deliberative process, we travel across the 

country. We have meetings at key locations, located in mining 

areas that have input from miners and labor and industry; and we 

respond to all of the comments and concerns that we get. 

That is part of why the process does get extended and takes a 

considerable amount of time, is it is an open process, it is transparent, it provides participation for all the stakeholders; and, at 

the end of the day, it ensures quality to make sure that we get it 

right. 

Mrs. CAPITO. I thank you very much. 

Thank you, Mr. Chairman. 

Chairman MILLER. Thank you. 

Mr. Hare? 

Mr. HARE. Thank you, Mr. Chairman; and thank you all for waiting while we had our votes. I just wanted to talk, if I could, for a 

moment. 

In my congressional district, I have eight mines in the southern 

part of my district, west central Illinois. I would like to ask a couVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
79

ple questions about limiting fire on the conveyor belts and address 

them to Mr. Stickler. 

As we know, after the Aracoma Alma accident, the conveyor belts 

can catch fire. Years ago, the National Institute For Occupational 

Safety and Health recommended that the belts themselves be made 

more flame resistant. In fact, the current standard—in picking up 

on what my colleagues said in terms of moving slow—the current 

standard is 52 years old. 

Before your arrival, the Bush administration stopped that rulemaking that would have updated the standard. Now we have a 

task force that is studying this thing yet again. My question is, 

why can’t that rulemaking be restarted now and a standard issue 

immediately? I don’t understand what the delay has been. And this 

is, again, a standard, as I say, that is 52 years old. 

Mr. STICKLER. With regard to the Aracoma accident, the fact that 

the belt that was used in it was fire resistant, what caused that 

accident and the loss of life was not the belts being fire resistant. 

The key thing—we cited 25 contributory violations in the law 

that contributed to that accident and the death of the miners. The 

one that was most key is the fact that the ventilation controls, the 

stoppings that separated the belt conveyor from the fresh air 

escapeway, two of those stoppings had been removed. So when the 

fire was in the belt entry, the smoke products and combustion went 

into the fresh air escapeway. Had those two stoppings been in place 

and if everything else had been the same at that mine, the other 

24 contributory violations still existed, and the miners would have 

been able to evacuate because there is no smoke in their intake 

escapeway. 

Mr. HARE. I understand that. I guess what my question is—we 

have a standard that is 52 years old and now your agency has a 

task force that is going to study this problem again; and my question to you again is why are we still waiting? Why can’t the rulemaking be restarted now and the standard issued immediately for 

this, irregardless of if this is a danger point and this can cause explosions or can cause people to die or to become injured in a mine? 

Why do we have a standard 52 years old that we are not updating 

and reinstituting a new standard on? 

Mr. STICKLER. Well, Congress provided for the technical study 

panel to study the use of belt air interface and also the fire-resistant properties of conveyor belts. This panel was—the charter was 

published in the Federal Register in December. They have already—they had their first meeting in January, their second meeting in March. They are meeting today in Salt Lake City, Utah. 

Their next meeting is in Alabama. They are doing extensive research to determine what would be the proper standards for fireresistant conveyor belts. 

Now for us to move forward instead of waiting for their report, 

we would have to do the same research to gather the same data 

to make the same evaluation. At this stage, I think is important 

that we allow the technical study panel that Congress provided for, 

let them do their job. When we get that information, then we will 

proceed accordingly. 

Mr. HARE. Do you know approximately when that will be? 

80

Mr. STICKLER. Their report is due to be finalized by the end of 

this year. 

Mr. HARE. I would hope that it wouldn’t take any longer than 

that. Because I think, clearly, after waiting 52 years for a new 

standard, I don’t think we can wait much longer. 

Just another question regarding belt air. Thanks to the leadership of Congressman Rahall, we know the practice of belt air can 

increase the dangers of miners to conveyor belt fire. Before your arrival, the administration made it easier for mine operators to use 

the approach. Do you have the authority right now to act to limit 

this practice? 

Mr. STICKLER. We have the authority. But, again, I think the 

technical study panel that Congress provided for, that is the second 

thing they are looking at besides the fire-resistant property, is the 

use of belt air interface; and they will finish their report at the end 

of this year. 

I trust that their recommendations will address this issue properly; and my recommendation is, if we allow that process to proceed—and this is a panel that is comprised of six very skilled 

health and safety professionals. Two members were appointed by 

the Department of Labor, two by the Department of Health and 

Human Services and two by Congress. Many of these individuals 

are professors of mining engineering at our primary engineering 

schools across the country, and I trust that the work that they are 

doing will provide us the information we need to determine the 

proper and most protective standards for the use of belt air and 

also fire-resistant belts. 

Mr. HARE. Well, my time has expired, but let me just suggest to 

you, Mr. Stickler, that I wouldn’t wait too long for this panel to get 

back. We have a lot of people in the mines. This is a dangerous situation for people. I don’t want to have another hearing on why we 

have lost more people in the mines while we are waiting for a commission to get back by the end of the year. I would think if you 

have the power to do it, my recommendation—my strong recommendation—would be to exercise your authority and proceed 

with it. 

I would yield back. 

Mr. STICKLER. Well, if I could, sir, I will just comment. 

The authority I would have would be through the process of implementing a new rule; and, as you know, that takes considerable 

time. The panel will conclude their study by the end of this year, 

and we will proceed accordingly. 

Chairman MILLER. Thank you. 

Mr. Davis. 

Mr. DAVIS OF TENNESSEE. I would like to thank the chairman 

and ranking member for holding this hearing today. I appreciate 

the seriousness and scope of this hearing. 

My question is primarily for Mr. Stickler, but anyone can respond. 

This week, I received a letter from an outstanding company from 

my district that has spent thousands of dollars in preparing a safety plan and enforcing that plan. The company which performs only 

surface mining has asked me for guidance. They have given me 

81

some examples that are problematic. Please allow me to read a few 

lines from their letter. 

Quote, one mission inspector has tried to issue a citation to a 

very large operator because the chairs provided for employees had 

only four legs instead of five and the inspector alleges that fourlegged chairs tip over easily. The same inspector walks through the 

operator location and pulls the trash from every trash container 

and leaves the trash on the floor. He has stated on numerous occasions that he has looked for items that spontaneously combust such 

as tubes of grease. I will admit the oily rags, that will spontaneously combust, but I have never seen or heard of a tube of grease 

doing this, and if such a hazard did exist I am curious as to why 

the standard packaging for grease is made of cardboard. End quote. 

Mr. Stickler, is there a manual or set of standards that outline 

the steps required for miner safety? Or is it left up to individual 

inspectors to determine if four-legged chairs or finding trash in 

trash cans are the threat to health and safety of miners? Are we 

spending more time on filling out reports and finding ‘‘gotcha’’ moments than we are in actually carrying out the mission of MSHA, 

which is to protect the miners? 

Mr. STICKLER. Yes, sir. We do have the inspection handbook for 

our inspectors. It is very detailed. 

To go back to the specific case that you mentioned, we don’t have 

standards for how many legs are on chairs. I would be happy to 

follow up if you would provide me enough detail that I could follow 

up on that. 

But I would also like to say that we have hundreds of men and 

women that work for MSHA that work very hard every day to see 

that the right thing is done for safety. Many of these individuals 

go into coal mines that aren’t as high as this table and crawl on 

their hands and knees in mud and water and hazardous conditions, 

that are dedicated to work very hard every day to protect the 

health and safety of miners. And the image that you projected 

there, I can’t conceive that that is something that exists within our 

organization. 

Mr. DAVIS OF TENNESSEE. I certainly appreciate you taking a 

look at this, and I will have my staff provide you with the letter 

that I quoted. 

I certainly appreciate the inspectors going out and doing their 

jobs. I hope we just don’t put so much pressure through the media 

and through Congress on inspectors to the point that they try to 

find things just to be able to build a report. That doesn’t do mine 

safety any good. 

What we need to do is to make sure that we have that set of 

standards, follow those standards. That way, both the employer 

and the inspector knows exactly what they are looking for. 

I appreciate your willingness to work on this for me. Thank you. 

Thank you. 

Chairman MILLER. Thank you, Mr. Davis. 

Mr. Stickler, if I might, I just have one quick question and we 

will wrap this up. You have all been very patient with your time. 

In your testimony, I think you said about half of the emergency 

response plans have been fully approved. I assume that means half 

82

haven’t been. What is the status of those that have not yet been 

approved and what is the timetable for that? 

Mr. STICKLER. Well, the vast majority of plans have been partially approved. And we say ‘‘partially approved’’ because the ones 

that have not been fully approved, it is primarily because of not 

providing for the 96 hours of breathable air. As you know, we put 

out guidance for that in February of this year. I think the last 

number I saw was roughly 55 percent of the plans—emergency response plans now have been approved, including the 96 hours of 

breathable air. So operators are starting to respond to the requirement for breathable air. 

There is one other issue that is a little bit of a problem, maybe 

a handful of operators in regard to the size of the zones for the preaccident monitoring and tracking of miners. 

As you recall, the MINER Act provides for pre-accident tracking 

so that we know where miners would be located if there is an explosion or fire. And most operators are doing that through the process of communications where they are tracking—where you go from 

one area of the mine to the other, that is recorded. 

There is an issue with just a handful of operators on the size of 

those zones, and that process between the district managers and 

the operators is such that we notify them that it is unacceptable 

and give them time then to modify their plan. But particularly in 

the last month or so since we have come out with the guidance on 

breathable air, there has been very rapid progress in increasing the 

percentage of plans that are fully approved. 

Chairman MILLER. So you would expect that they would be in 

compliance within 30 days, 60 days, 90 days? 

Mr. STICKLER. I am reluctant to give you a time period. 

Also, I would point out that the MINER Act also provides a 

mechanism, once we have worked with the operators through informing them that what they have submitted is not acceptable, 

given them a chance to resubmit, once we have gone through that 

back and forth, and the next stop is to issue a violation, that then 

will go to the Federal Mine Health and Safety Review Commission, 

and a judge then will determine whether or not the operator’s plan 

was sufficient or whether MSHA——

Chairman MILLER. You don’t expect to go through that process 

for 45 percent of the plans do you? 

Mr. STICKLER. Absolutely not. I would just take a handful. 

Chairman MILLER. I understand if somebody wants to challenge 

it, but 55 percent of them have complied, as you have pointed out. 

So I am just trying to determine what is going on with the other 

half here. You know, it is kind of a basic benchmark in terms of 

the MINER Act. 

Mr. STICKLER. Right. What is going on with the other half is the 

review process is continuing. This is handled by the district managers. We have 11 districts across the country, and they have specialists that review these plans, identify the deficiencies, write deficiency letters back to the operator, and that is a back-and-forth 

process. 

Chairman MILLER. Do we have a list of those who have not complied? Is there a list of those who have not fully been approved? 

83

Mr. STICKLER. I don’t have that list with me. I am sure—that is 

one of the things we are doing, is we are tracking regularly all the 

components of the MINER Act. Every requirement of the MINER 

Act is being tracked by each district. That is being reported in to 

the headquarters here in Arlington. 

We are monitoring the number of compliance for all the specific 

items, whether it be a multi-gas detector that we put in the emergency temporary standard and the final mine evacuation rule that 

was finalized in December. But there is about 15 items that we are 

tracking on a regular basis. We have a monthly report that shows 

us the status of each one of those specific requirements of the 

MINER Act. 

Chairman MILLER. So, theoretically, a printout is available of 

their progress or their lack of progress? 

Mr. STICKLER. Yeah, we could provide that. 

Chairman MILLER. That would be helpful. 

Congressman Kucinich, did you have a question? 

Mr. KUCINICH. Yes. To Mr. Stickler, the question arises, with respect to enforcement, have you ever shut down a mine for violations of health and safety? 

Mr. STICKLER. Well, MSHA’s law requires that the area affected 

by a violation, if it is an imminent danger, it would be shut down 

immediately. If it is a situation where an operator has been issued 

a citation and they have failed to abate that citation or violation, 

that affected area can be shut down immediately. It depends on the 

nature of the violation. There are some——

Mr. KUCINICH. I understand that is the law. But my question 

was, have you ever shut down a mine for a safety or a health violation? 

Mr. STICKLER. Well, I am sure MSHA has. When you have a violation that would affect the entire mine, such as methane accumulation or improper ventilation, that withdrawal order that MSHA 

issues would affect the entire mine. 

Mr. KUCINICH. Have there been mines shut down recently for 

health or safety violations? 

Mr. STICKLER. I am sure there have been mines shut down. 

Mr. KUCINICH. Anyone else on the panel that knows the answer 

to that? 

Mr. MCATEER. Mr. Kucinich, the process—there are about a 

thousand mines a year, on average, that have a shutdown order on 

part or all of that mine to be shut down by the agency; and that 

is year in year out. That is in addition to if there is an imminent 

danger. So that does happen. But I can’t say the last year when 

it has. 

Mr. KUCINICH. Yeah, Mr. Chairman, I think it would be interesting for this committee to know how serious the administration 

has been on enforcement, how far they go to ensure compliance by 

raising the issue. Thank you. 

Chairman MILLER. Thank you, Mr. Kucinich. 

If you could help us get that information, Mr. Stickler, that 

would be helpful. 

[The information follows:]

84


dolqfr-1.eps
85


dolqfr-2.eps
86

Chairman MILLER. Again, let me thank you again for your cooperation this morning with the committee. I think clearly you can 

hear the frustration from members of the committee about the urgency of this matter. I think none of us want to be on watch when 

again another group of miners are injured or lose their lives in 

these accidents. 

It was the intent I think of the authors of the MINER Act that 

this would increase the margins of safety, and I think that is why 

there is so much concern about the rate of implementation around 

this Act. I think when the authors wrote these emergency response 

plans, I assume that they believed that the plans would be in effect 

in the near future. And, you know, this process of negotiation in 

the regions, when this will come to completion, they will have an 


dolqfr-3.eps
87

approved plan, appears it can take a very long time in different regions. I am very worried about that time frame, and I think that 

the other Members of Congress are, too, if that continues to drain 

on. There ought to be a point at which it cannot go beyond. 

But, again, this committee plans to stay engaged in this until we 

get it right; and I hope that we can continue to call on you for your 

expertise. But I think it is clear that the Members of Congress and 

certainly those from the most heavily impacted areas are looking 

for a different tone, a different timetable, a different sense of urgency than we have seen in the past. Because many of us believe 

that that led to the loss of life and to the actions that took place, 

and we don’t want a repeat of that. 

Thank you again very much, and my apologies for all of the 

interruptions. 

The committee will stand adjourned. 

[The prepared statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 

From the State of Pennsylvania 

Thank you, Mr. Chairman, for holding this hearing on how effective the Mine 

Safety and Health Administrations safety and health programs are. 

I would like to extend a warm welcome to all of the witnesses. I appreciate the 

time you took to be here today and look forward to your testimony. 

The tragedies at the Sago Mine in West Virginia and the Quecreek Mine in Pennsylvania shed light on the need for additional safety measures to be implemented 

in mines throughout this country. To its credit, the 109th Congress moved quickly 

in passing the MINER Act to ensure that many of the necessary safety measures 

were codified in law. 

I am interested in hearing how effective MSHA has been in implementing provisions from the MINER Act, and whether or not these provisions have done enough 

to ensure the safety of our miners. 

Thank you again, Mr. Chairman, for holding this hearing. I yield back the balance 

of my time. 

[Supplemental materials submitted by Mr. McAteer follow:] 

[Attachment 1: List of rules withdrawn by MSHA follow:]

88


mcat1-1.eps mcat1-2.eps
89


mcat1-3.eps mcat1-4.eps
90


mcat1-5.eps mcat1-6.eps
91


mcat1-7.eps mcat1-8.eps
92


mcat1-9.eps mcat1-10.eps
93


mcat1-11.eps mcat1-12.eps
94

[Attachment 2: Memorandum for the file follows:]

July 2006. 

To: Sago Mine Investigation File

From: Suzanne Weise & Patrick McGinley

CC: Davitt McAteer

RE: Thinking Out-Side-The Box: The Proposed Blended Duty of Care and Safety 

Case Model for Regulation in the Coal Mining Industry of Australia 

I. INTRODUCTION 

New regulatory and administrative measures have been proposed to address perceived shortcomings of the existing statutory and regulatory mine safety regime 

subsequent to the Sago Mine explosion. Some coal industry officials, regulators and 

other interested parties have been critical of these proposals on the ground that 

broad, generally applicable regulatory mandates, fail to take into account mine-specific circumstances and features. Such criticism asserts that regulatory mandates 

that fail to adequately address mine-specific issues are likely to involve excessive 

cost in relation to increase in miner safety and that they are likely to prove inefficient and or ineffective. 

This assertion that mine site-specific issues should be an integral part of any response to the regulatory inadequacies identified in the wake of the Sago investigation is not necessarily in conflict with the regulatory proposals it criticizes. On the 

contrary, ‘‘outside-the-box’’ analysis might lead to new approaches blending the general regulatory mandate approach of recent proposals with critics’ demand for attention to site-specific mine characteristics. Below, this memorandum identifies an example of ‘‘outside-the-box’’ thinking which might provide the impetus for resolving 

concerns of critics of new mine safety regulatory proposals. The memo does not 

argue for the adoption of the blended duty of care/safety case regulatory model proposed for the coal industry in Australia. Rather, the approach of the Australian proposal provides and example of how creative outside-the-box thinking may help to resolve thorny regulatory issues which tend to be frozen by ossified conventional analysis. 

This Memorandum describes the generally applicable ‘‘duty of care’’ standard of 

Australian law and a proposal to append to the existing coal mine safety regulatory 

regime a ‘‘safety case’’ approach found to be successful when applied occupational 

health and safety regulation of other industries in Australia.1 Relevant to the PostSago search for ways to improve mine safety is the active involvement of mine managers in developing mine site-specific approaches to reduction of health and safety 

hazards. 

The following discussion describe in summary form a 2005 report and attendant 

working paper made to and for the West Australian government; the charge of Hopkins and Wilkinson, the reports’ authors, was to provide advice on best practice 

safety regulation for the mining industry in that State.2,3

II. DUTY OF CARE IN AUSTRALIA 

Australia is a national federation of six States and two Territories. Under the 

Australian system of government, States and Territories have responsibility for enacting and enforcing laws relating to workplace health and safety.4

Each State and Territory has a principal Occupational Health and Safety (OHS) 

Act which sets out requirements for ensuring workplace health and safety. These 

requirements spell out the duties of different groups of people who play a role in 

workplace health and safety. These requirements are known collectively as the 

‘‘Duty of Care.’’ 5 Duty of care legislation ‘‘is often described as outcome-based, performance based, or goal setting legislation because of its focus on outcomes.6 This 

duty of care standard has roots in the common law tort of negligence recognized in 

Anglo-American jurisprudence. In Australia’s occupational health and safety law the 

duty of care is a component of statutory regime protecting workers.7

Duty of care requires employers, employees and any others who may have an influence on hazards in a workplace to do everything ‘reasonably practicable’ to protect the health and safety of workers.8 Prior to the adoption of the duty of care approach, safety obligations were imposed only up to the level of the mine manager 

and no duty was imposed on mine owners.9

The term ‘reasonably practicable’ under duty of care means that the requirements 

of the law vary with the degree of risk attendant a particular activity or work environment which must be weighed against the time, trouble and cost of taking measures to control the risk.10 It allows the duty holder to choose the most efficient 

95

means for controlling a particular risk from the range of feasible options preferably 

in accordance with the ‘hierarchy of control’.11

The range of options falling within the scope of ‘reasonably practicable’ allows employers to meet their duty of care at the lowest cost and require advances in technology and knowledge to be incorporated when efficient to do so.12 The duty holder 

must show that it was not reasonably practicable to do more than what was done 

or that it has have taken ‘reasonable precautions and exercised due diligence.’ 13

Specific rights and duties flowing from the duty of care include: 

• provision and maintenance of a safe plant and systems of work; 

• safe systems of work in connection with a plant; 

• a safe working environment and adequate welfare facilities; 

• provision of information and instruction on workplace hazards and supervision 

of employees in safe work; 

• monitoring the health of employees and related records keeping; 

• employment of qualified persons to provide health and safety advice; and 

• monitoring conditions at the workplace. 

These rights and duties are representative of employer’s specific duties in all Australian States and Territories. 

When workplace duty of care legislation was first adopted, there was some concern that ‘‘prescription’’ would be abandoned and there would be a move toward industry self-regulation.14 However, experience has shown that the duty of care approach to occupational health and safety in Australia works in conjunction with 

statutory prescription rather than as a replacement.15 The ‘‘broadly stated’’ duty of 

care approach is ‘‘now widely understood’’ as requiring a risk management approach 

including a process of hazard identification, risk assessment and risk control.16

As noted above, Australia’s application of duty of care doctrine to occupational 

health and safety regulation involves companies in risk assessments regarding specific hazards and allows employers to make site-specific decisions as to measures 

needed to control identified risks. Discussed below in Section III is a proposal to incorporate much broader opportunities for coal operators to meld a mine safety regulatory regime to local conditions and considerations. In the Sago Mine context, such 

an approach or a derivation thereof might allow proponents and critics of new regulatory mandates to find common ground, especially as to the issue of consideration 

of mine-specific issues. 

III. PROPOSAL TO USE ‘‘SAFETY CASES’’ FOR REGULATION OF 

AUSTRALIA’S MINING INDUSTRY 

Hopkins and Wilkinson provide an example of how ‘‘thinking outside-the-box’’ 

might resolve difficult and contentious issues relating to coal mine health and safety 

in their working paper, Safety Case Regulation for the Mining Industry, prepared 

for the Australian National Research Centre for Occupational Health and Safety 

Regulation.17 As discussed below, Hopkins and Wilkinson’s paper draws from the 

Australian experience with successful ‘‘safety case’’ regimes applied to major hazardous waste facilities in the State of Victoria and the National Offshore Petroleum 

Safety Authority (NOPSA).18 Most relevant to Post-Sago efforts to improve mine 

safety in West Virginia and other coal producing jurisdictions is the safety case emphasis on careful site specific analysis of safety and health hazards. The suggestion 

that regulation and site specific health and safety issues are inimical is clearly debunked by the safety case approach. 

Before discussing their proposal to blend the existing mine safety regime including its’ broad duty of care requirements, they begin their discussion with the proposition that safety management systems need to focus on the most serious hazards 

while not neglecting other health and safety risks.19 They opine that major accidents are usually preceded by indications of trouble and that safety plans must 

therefore identify these indications and specify appropriate action to be taken when 

they occur.20 They explain: 

[P]lans must identify trigger levels, or events, and action response plans, actions 

to be taken in response to trigger events. For each hazard, there are normally several trigger levels of increasing seriousness, with corresponding action plans, ranging up to withdrawal of all personnel from the mine. Mines have therefore developed schedules of triggers and corresponding actions and these have become know 

as TARPs (Trigger Action Response Plans).21

According to Hopkins and Wilkinson, ‘‘TARPs are the heart and soul of * * * 

principal hazard management plans.’’22

The working paper notes that ‘‘in other industries the need to focus on the most 

serious hazards and the apparent failure of previous, (mainly prescriptive), reguVerDate 0ct 09 2002 16:58 Mar 13, 2008 Jkt 000000 PO 00000 Frm 00099 Fmt 6602 Sfmt 6621 G:\DOCS\110TH\FC\110-38\35186.TXT HBUD1 PsN: DICK
96

latory systems * * * led to the development of safety case regimes.’’ 23 These regimes require operators to: 

• provide a detailed description of the hazardous facility 

• identify all potential major hazards and major accident events 

• carry out a systematic assessment of the nature of such events and their consequences 

• put in place control systems to safeguard against such events 

• monitor the controls to ensure that they are working 

• embed this control system in a comprehensive safety management system.24

Hopkins & Wilkinson explain how safety cases differ from duty of care responsibilities: 

Arguably, all this is already required by the general duty of care. But the crucial 

additional feature of a safety case regime is that it is a licensing regime. Operators 

are required to make a case to the regulator indicating how they intend to comply 

with these requirements (hence the term ‘‘safety case’’). Regulators must ultimately 

accept or reject the safety case.25

They observe that the evaluation of safety cases may be quite time consuming and 

that complex safety cases require considerable expertise because of the amount of 

detail in complex safety cases.26 Further, Hopkins and Wilkinson point out that 

‘‘once accepted by the regulator, all the detail in the case is enforceable.’’ 27 Safety 

case regimes, they emphasize, ‘‘are * * * not a retreat from prescription; it is simply that what is prescribed is set out in the safety case rather than in legislation 

or regulations.’’ 28 The amount of detail in a safety case is proportionate to the complexity of the operations at the site and smaller mines are likely to require a much 

more simplified safety case than large mines.29

A safety case regime can be resource intensive especially where mines require 

complex safety cases. The authors emphasize that a safety regime must be well 

resourced or it would likely offer no advantages over and above non-safety case regimes.30 They also address the risk assessment component of safety cases and respond to criticism that such assessment is problematic.31 Hopkins and Wilkinson 

concede that some criticism of how risk assessment is applied may be accurate but 

not criticism of the safety case concept itself.32

For complex facilities with complicated processes, they argue, there is no alternative to the use of systematic hazard and risk assessment methodologies. Moreover, they minimize the complexity of safety cases observing that: 

* * * for many risks, especially for general occupational health and safety risks, 

appropriate precautions are well known. For example the law generally requires certain dangerous machines to have suitable guarding, power takeoff shafts on tractors 

to be covered, ladders on construction sites to be secured, heavy vehicles to have 

efficient brakes and so on. In other words, the risk assessment part of the process 

of managing health and safety has already been done, and the standards are well 

known and documented. * * * [I]n these circumstances, it is neither necessary nor 

desirable to carry out a risk assessment from scratch. The assessment process is 

generally a narrower one of checking that the standard precautions are appropriate 

in this particular case.33

Hopkins and Wilkinson also examine activities of inspector carries in a safety case 

regime and the implications these have for staffing.34 They identify the most important duty is to judge if the company has the leadership, staff, systems and procedures to safely operate the facility.35 ‘‘Where there are deficiencies,’’ the authors observe, ‘‘the regulator must have the capability to recognize these and develop appropriate strategies to persuade senior staff to make appropriate changes.’’36 As far as 

enforcement in the safety case setting, resort is rarely made to legal options but 

Hopkins and Wilkinson confirm that regulators are expected to take formal enforcement action when appropriate.37

Hopkins and Wilkinson recognize the difference between safety case situations 

and the traditional role of safety inspectors to check for compliance with specific requirements in the legislation and regulations. They confirm that this type of compliance monitoring continues to have a place in a safety case regime has its place, ‘‘especially if the information obtained is used to build a picture of how the organization health and safety systems are operating.’’38 They caution that inspectors must 

be cautious to ‘‘avoid concentrating on minutiae and missing the bigger picture.’’39

The working paper also emphasizes that regulatory staff must have personal 

credibility with senior company staff to have their views taken seriously, so the regulatory staff must possess knowledge and first hand experience of the industry to 

be regulated.40

Following these observations, the working paper proposes specific principles of 

best practices regulation of which the safety case is an integral part. 

97

IV. A BEST PRACTICES SAFETY CASE REGIME PROPOSAL FOR THE 

AUSTRALIAN COAL INDUSTRY 

Hopkins and Wilkinson recommend consideration of the 33 principles 41 in developing a safety case regime for the mining industry. These principles are briefly summarized below; the full statement of principles appearing in the working paper is 

attached as Appendix. 

(1) Safety case regimes should be introduced in the mining industry, not as a replacement of duty of care but as an addition to it by requiring operators to demonstrate how they intend to fulfill their duty of care.42

(2) Safety case requirements should apply to all mines, regardless of size, with 

the understanding that the smaller and less complex the mine, the simpler the safety case.43

(3) Safety cases should emphasize the idea of triggers to action and incorporate 

trigger action response plans where appropriate.44

(4) Safety cases in the mining industry should address all risks including those 

to occupation health.45

(5) Safety cases should include a detailed consideration of fatigue management.46

(6) Mining safety cases should not normally be required to carry out quantitative 

risk analysis.47

(7) The workforce and their representatives should have the right to be consulted 

I in the development of a safety case and to raise concerns about a safety case after 

it has been accepted.48

(8) The safety case regime should specify guidelines for employee participation.49

(9) Safety cases should include provision for adequate training for workforce and 

management.50

(10) The development of safety case regimes within particular jurisdictions should 

be coordinated and aligned where possible.51

(11) OHS should be amalgamated into a single Act, with industry specific regulations and codes of practice where necessary.52

(12) Prosecution can be of companies and individuals. The repertoire of enforcement options available to inspectorates should be as broad as possible, and the 

workforce, in particular health and safety representatives, should have the right to 

request the regulator to initiate an investigation with a view to enforcement action, 

including prosecution.53

(13) Inspectors must carry out both announced and unannounced inspections.54

(14) Separate statutory authorities should be established to manage safe case regimes in the mining industry.55

(15) Regulatory staff must be paid competitive salaries in order to recruit and retain staff of the requisite quality.56

(16) There should be a single point of contact for a site within the inspectorate 

(i.e., one person should have overall responsibility for the site and visits it regularly).57

(17) The competency and accountability of all staff required for the Authority 

should be defined.58

(18) Recruitment of staff to an Authority will need to be by open advertisement.59

(19) A comprehensive training program will need to be developed and implemented as part of developing an enhanced inspectorate, including training in the 

techniques of root cause analysis (designed to identify the systemic causes of accidents) and evidence gathering as a prelude to prosecution.60

(20) Inspectors should be trained both in systemic accident analysis and in evidence gathering, particularly concerning neglect by senior company officers.61

(21) Inspectorates should publish reports on all significant accidents, using the 

Australian Transport Safety Bureau reports as a model.62

(22) The size and cost of a safety Authority should not be determined by any historical method but should be worked out from first principles. The assumptions 

upon which size is determined should be transparent.63

(23) Government should be aware that any proposed Authority would cost substantially more than the present regulator and should seriously consider the possibility of external funding options such as imposing an industry levy.64

(24) One-off start up costs should be paid by the government.65

(25) If the decision is to fund an Authority in part or in whole from industry 

sources, the funding arrangement should not be set up on a fee for service basis.66

(26) A proposed Authority should have an expertise based advisory board which 

should include representatives of industry, the workforce, unions and government.67

(27) The Authority should report to parliament, through a Minister to be decided 

by government.68

98

(28) The Authority’s ways of working, systems, procedures and activities should 

be as transparent as possible.69

The authors, in concluding that the safety case system should be the basis for the 

regulation of health and safety in the Australian mining industry, recognize that 

‘‘best practice regulation requires the ability to effectively monitor and audit companies safety cases as well as the provision of high quality advice, encouragement and 

stimulation to the industry to improve its own performance as well as effective enforcement and prosecution of the (revised) law, where appropriate.’’70

V. CONCLUSION 

As noted in the introduction to this memorandum does not argue for the adoption 

of the blended duty of care/safety case regulatory model proposed for the coal industry in Australia. Rather, the approach of the Australian proposal provides and example of how creative outside-the-box thinking may help to resolve thorny regulatory issues which tend to be frozen by ossified conventional analysis. 

In light of the criticism of Post-Sago regulatory and administrative proposals addressing perceived shortcomings of the existing statutory and regulatory mine safety 

regime critics and regulatory change proponents should welcome the opportunity to 

review and critique out-side-the-box approaches identified by those outside the current MSHA regulatory framework. The Australian duty of care/safety case regime 

has been successfully utilized in Australia to address workplace health and safety 

issues relating to hazardous waste and off-shore petroleum industries. Australian 

authorities are examining the safety case approach to determine its’ potential applicability to that nations’ coal mines. The safety case approach is one way that sitespecific considerations may be given appropriate attention as critics of Post-Sago remedial proposals demand. At the very least, those critics and other interested parties should begin to explore new approaches to protect the health and safety of the 

nation’s coal miners. 

ENDNOTES

1 Hopkins & Wilkinson, ‘‘Working Paper 37: Safety Case Regulation for the Mining Industry,’’ 

(July 2005). (Hereafter ‘‘Hopkins & Wilkinson’’). 2 Id. at 3. The advice was provided in the first place to a Mine Safety Improvement Group 

and formed the basis of its report to government, delivered in April 2005. The full report is 

available at: http://www.ministers.wa.gov.au/carpenter/docs/features/

interim%20report%20stage%201%20w%20text.pdf 

The Hopkins and Wilkinson working paper discussed herein ‘‘aims to extricate the advice outlined in that report from the particular Western Australian context and present it in a way that 

is of potential relevance to other Australian jurisdictions. The aim, then, is to present a model 

for best practice safety regulation in the mining industry generally.’’ Id. The report and working 

paper do not parallel traditional discussions of regulatory models that focus on regulatory requirements to be imposed on a regulated industry. Rather, Hopkins and Wilkinson go further—

considering both regulatory requirements and with the structure of the regulator. 3 Id. Wilkinson and Hopkins explain their report and work paper devote considerable attention 

to regulatory structure because of its importance for any government seeking to set up a best 

practice regulatory regime. 4The following is a link to the State and Territory OHS authorities: http://

www.nohsc.gov.au/OtherRelatedSites/australiansites/ 5The ‘‘duty of care’’ standard of the common law tort of negligence (in American Jurisdictions 

often referred to as the ‘‘reasonable person’’ standard) underpins the development of occupational health and safety regulation in Australia as well as in the United Kingdom. 6 Id. at 3-4, note 3, citing, N Gunningham, ‘‘The Development Model for best practice regulation in the mining industry of a New Regulatory Model for Occupational Health and Safety in 

the New South Wales Coal Industry’’, October 1999. Paper available at http://

www.minerals.nsw.gov.au/legislation?p=1696#Coal at 47. 7See generally, http://www.ascc.gov.au/OHSLegalObligations/DutyofCare/dutycare.htm 8 ‘‘Any others’’ includes contractors and those who design, manufacture, import, supply or install plant, equipment or materials used in the workplace. 9 Hopkins & Wilkinson, supra note 1 at 3. 

10The words ‘‘reasonably practicable’’ have been the subject of much judicial consideration. 

Three general propositions are to be discerned from the decided cases: 

• the phrase ‘‘reasonably practicable’’ means something narrower than ‘‘physically possible’’ 

or ‘‘feasible’’; 

• what is ‘‘reasonably practicable’’ is to be judged on the basis of what was known at the relevant time; 

• to determine what is ‘‘reasonably practicable’’ it is necessary to balance the likelihood of the 

risk occurring against the cost, time and trouble necessary to avert that risk. 

Slivak v. Lurgi, 205 CLR 304, 322 [2001] HCA 6 (citing cases in footnotes 36 through 39). 

11The ‘hierarchy of control’ refers to the range of feasible options for managing the risk to 

health and safety. The hierarchy normally ranges over the following controls: elimination of the 

hazard; its substitution with a less harmful version; its redesign; engineering controls; isolation 

of the hazard from people at the workplace; safe work practices; redesigning work systems; and 

99

the use of personal protective equipment by people at the workplace. http://www.nohsc.gov.au/

OHSLegalObligations/DutyofCare/dutycare.htm. 12http://www.nohsc.gov.au/OHSLegalObligations/DutyofCare/dutycare.htm 13 Id. 14 Hopkins & Wilkinson at 4. Black’s Law Dictionary (8th ed. 2004), defines ‘‘prescription’’ as 

‘‘[t]he act of establishing authoritative rules.’’ The term ‘‘prescription’’ used in the Australian Occupational Health Safety context refers to what Americans call ‘‘regulatory mandates.’’ 15 Id. at 4. 16 Id. 17The National Research Centre for Occupational Health and Safety Regulation is a research 

within the regulatory institutions network, in the Research School of Social Sciences, at the Australian National University. The Center is funded by the National Occupational Health and 

Safety Commission (‘‘NOHSC’’). http://ohs.anu.edu.au 18 Hopkins & Wilkinson supra, note 1 at 7. The Victorian regime covers about 50 major hazard 

sites in that state. The legislation draws on the national standard for the regulation of major 

hazards, but is informed by major hazard regimes in Europe and goes beyond the national 

standard in various respects. The Victorian regulator is relatively well-resourced. It has scrutinized and commented on safety cases in great detail. Like the Victorian regime, the offshore 

petroleum safety case regime, largely administered by NOPSA, has detailed regulations and an 

extensive set of guidelines about how these regulatory requirements can be met. Moreover, 

NOPSA states in its Strategic Plan that safety cases will be checked to ensure that they are 

consistent with ‘‘good oil field practice.’’ 19They base their discussion on the Queensland Coal Mining Safety and Health Act of 1999, 

which defines a principal hazard as one with the potential to cause multiple fatalities and requires mine operators to develop individual principle hazard management plans for each such 

hazard. 20 Hopkins & Wilkinson supra, note 1, at 5. 21 Id. 22 Id. 23 Id. at 5-6. 24 Id. at 6. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30The authors find evidence for this observation in the British rail system’s safety case regime. The U.K government’s administration of the rail safety case regime sought to minimize 

the role of the inspectors’ approval of safety cases and catastrophic train accidents followed. 

They assert that this result is ‘‘a graphic example of what can happen if such a regime is introduced without the other requisite features of good safety case regimes, namely a regulator with 

the capacity to professionally challenge safety cases, a workforce which is sufficiently empowered to play an active part in the process and finally, a belief at the working level in both the 

regulated and regulator that the safety case is a beneficial approach.’’ 31 Id. Such criticism includes the accusation that complex risk assessment methodologies (particularly where quantification is involved} can be difficult to understand and therefore unreliable 

and that the results of quantitative risk assessments can be ‘‘massaged’’ to reduce risk to an 

acceptable level. 32 Id. 33 Id. at 30. 34 Id. at 8-9. 35 Id. at 8. 36 Id. 37 Id. The authors stress that ‘‘best practice auditing by inspectors is not just passive compliance monitoring; it involves challenge. * * * Best practice inspectors are engaged not only in 

compliance monitoring; they are also investigators. We are talking here of proactive investigation, not just reactive investigation which follows an accident or so called ‘near miss.’ ’’ 38 Id. 39 Id. 40 Id. 41 Id. at 9-24. Although there are 33 principles set forth in the paper, only those that are relevant to our inquiry here are included in the text. 42 Id. at 10. 43 Id. 44 Id. 45 Id. at 11. 46 Id. at 11-12. 47 Id. at 11-12. Safety case regimes in process industries in Australia often make use of quantitative risk assessment, but the authors did not think this may not be appropriate in mineral 

extraction operations but did not elaborate as to why. 48 Id. at 12. The authors suggest that employees should have the right to raise problems about 

a safety case which become apparent after it has been accepted and to call inspectors to examine 

issues which arise if necessary. 49 Id. 50 Id. at 12-13. The authors suggest that tier-training will be necessary, with the level of training determined by job requirements. Workers will also need intensive training in risk-management principles and the safety case should include a provision for such training. Finally, training will also be required for managers. 

100

51 Id. at 13. 52 Id. at 13-14.The authors notes that the UK has adopted a single safety Act covering all UK 

industry. 53 Id. at 14.The authors recognize that ‘‘the importance of persona liability is that it directly 

affects the motivations of decision makers who are responsible for creating the risks, in a way 

that holding companies responsible fails to do.’’ Hopkins & Wilkinson, supra. note 1 at 14. The 

authors also recognize that some jurisdictions provide third parties with a right to prosecute 

when the regulatory agency does not. This appears to be similar to our citizen suit provisions 

under SMCRA. 54 Id. at 14-15. 55 Id. at 15-16. 56 Id. at 16. 57 Id. at 16-18. 58 Id. at 18. 59 Id. at 18. 60 Id. at 18-19. 61 Id. at 19. 62 Id. at 19. See, http://www.atsb.gov.au/publications/investigation—reports/investigation—

reports.aspx. 63 Id. at 20-21. 64 Id. at 21. 65 Id. at 22. 66 Id. at 21-22. 67 Id. at 22. 68 Id. at 22-23. 69 Id. at 23. 70 Id. at 24. 

[Internet address to the Aracoma Alma Mine Report follows:]

http://www.wju.edu/aracoma/AracomaAlmaMineReport—November2006.pdf 

[Internet address to the Sago Mine Disaster Report follows:]

http://www.wju.edu/sago/SagoMineDisasterReport—July2006.pdf 

[Whereupon, at 1:24 p.m., the committee was adjourned.]

Æ