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THE S–MINER ACT (H.R. 2768) AND THE MINER

HEALTH ENHANCEMENT ACT OF 2007 (H.R. 2769)

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, JULY 26, 2007

Serial No. 110–59

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 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey 

Timothy H. Bishop, New York 

Carol Shea-Porter, New Hampshire 

Phil Hare, Illinois 

Joe Wilson, South Carolina, 

Ranking Minority Member 

Tom Price, Georgia 

John Kline, Minnesota 

(III)

C O N T E N T S 

Page

Hearing held on July 26, 2007 ............................................................................... 1

Statement of Members: 

Kline, Hon. John, a Representative in Congress from the State of Minnesota, Pittsburgh Post-Gazette newspaper article ................................... 10

Payne, Hon. Donald M., a Representative in Congress from the State 

of New Jersey, additional materials submitted .......................................... 46

Wilson, Hon. Joe, ranking minority member, Subcommittee on Workforce 

Protections ..................................................................................................... 3

Prepared statement of ............................................................................... 7

Letter from academic experts in mine safety and health, dated July, 

25, 2007 .................................................................................................. 4

Additional materials submitted ............................................................... 77

Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce Protections ................................................................................................................ 1

Additional materials submitted for the record ....................................... 106

Various comments submitted to the committee on S–Miner, as introduced ....................................................................................................... 115

Statement of Witnesses: 

O’Dell, Dennis, administrator of occupation safety and health, United 

Mine Workers of America (UMWA) ............................................................. 21

Prepared statement of ............................................................................... 23

Letter dated July 26, 2007, from the UMWA ......................................... 76

Stricklin, Kevin, administrator of coal mine safety and health, U.S. Department of Labor ......................................................................................... 13

Prepared statement of ............................................................................... 15

Weeks, James L., Sc.D., CIH, consultant industrial hygienist to the 

United Mine Workers of America ................................................................ 25

Prepared statement of ............................................................................... 27

Wright, Michael J., director of health, safety and environment, United 

Steelworkers .................................................................................................. 29

Prepared statement of ............................................................................... 31

(1)

THE S–MINER ACT (H.R. 2768) AND

THE MINER HEALTH ENHANCEMENT 

ACT OF 2007 (H.R. 2769) 

Thursday, July 26, 2007

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and Labor 

Washington, DC

The subcommittee met, pursuant to call, at 2:03 p.m., in Room 

2175, Rayburn House Office Building, Hon. Lynn Woolsey [chairwoman of the subcommittee] presiding. 

Present: Representatives Woolsey, Payne, Bishop of New York, 

Hare, Wilson, Price, Kline, and McKeon. 

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

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

Calemine, Labor Policy Deputy Director; Lynn Dondis, Senior Policy Advisor for the Subcommittee on Workforce Protections; Michael Gaffin, Staff Assistant, Labor; Peter Galvin, Senior Labor 

Policy Advisor; Brian Kennedy, General Counsel; Thomas Kiley, 

Communications Director; Alex Nock, Deputy Staff Director; Joe 

Novotny, Chief Clerk; Michele Varnhagen, Labor Policy Director; 

Mark Zuckerman, Staff Director; Robert Borden, Minority General 

Counsel; Cameron Coursen, Minority Assistant Communications 

Director; 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. 

Chairwoman WOOLSEY [presiding]. A quorum being present, the 

hearing on the S-MINER Act, H.R. 2768, and the Miner Health Enhancement Act, H.R. 2769, will come to order. 

Pursuant to committee rule 12(a), any member may submit an 

opening statement in writing which will be made part of the permanent record. 

I now recognize myself, and I will be followed by Ranking Member Joe Wilson, for opening statements. 

I want to thank you all for coming to the H.R. 2768 and H.R. 

2769 Miner Health Enhancement Act hearing today. We are going 

to have votes this afternoon, so we are not going to go on and on. 

2

We are going to listen to you, and then get back to questions and 

answers. I thank you for coming late in the day. That is not always 

easy to do. 

Our Republican colleagues and the mining industry requested 

this hearing, and we were happy to accommodate them because all 

members of the subcommittee are aware that we have held two 

previous hearing on this important issue, and we have heard not 

only from miners, we have heard from their families and their representatives, but also from MSHA and the industry. 

I have met with industry representatives myself. My staff has 

been working with the industry, MSHA and other interested parties looking for a consensus on this particular legislation. They are 

coming to us because the health and safety of our miners are much 

too important to ignore, and much too important to delay. 

I am proud to be a sponsor of H.R. 2768 and H.R. 2769 with 

Chairman Representative Miller and Representative Rahall from 

West Virginia, and many members of the subcommittee. This legislation makes it absolutely clear to MSHA what Congress expects 

that the agency do. 

Nearly 40 years ago, Congress passed for the first time the 

health and safety legislation for miners. While mining is inherently 

dangerous, we recognized then that there was much government 

could do to reduce fatalities due to accidents and work-related illnesses such as black lung. 

Things have improved over the years, but they have not improved enough. Recently, we had a wakeup call. In the year 2006, 

there were three serious mine accidents at Sago, Aracoma and 

Darby, killing 19 miners. By the time 2006 was over, 47 miners 

were killed in work-related accidents. This was over twice the number of miners who lost their lives just the year before. 

Sadly, these accidents could have been prevented had mine operators followed the law and had MSHA vigorously enforced the law 

in its own regulations. 

Congress did act swiftly in 2006 by passing the MINER Act. But 

11⁄2 years later, MSHA has not done much to implement the mandates of that law. The miners’ widows who testified before the full 

committee this spring made that very clear to us. They pointed out 

the lack of essential improvements yet to be made at their mines. 

And Cecil Roberts, president of the United Mine Workers, also 

gave us a sober assessment. He testified, and I am quoting him, 

‘‘The reality is that if Sago, Alma or Darby happened today, the results would very likely be the same. The men who should have escaped those tragedies over a year still could not do so today because very little progress has been made.’’

The bills that we are examining today put teeth into the MINER 

Act by tightening and supplementing current law with regard to 

detailed emergency response plans, the rescue and recovery incident investigation authority of MSHA, and penalties for those owners who break the law. But the MINER Act when it was passed 

in 2006 didn’t go far enough to provide for the health and safety 

of miners, and we knew we would have to do more. 

These additional issues were more fully explored at the hearings 

the chairman held earlier this spring. For example, miners and 

miners’ widows told us that miners are afraid to complain about 

3

unsafe conditions because they don’t want to lose their jobs and 

they don’t want to be blacklisted. 

In mining areas in West Virginia and Kentucky and other states, 

coal is king and we know that. If a miner loses his job, he loses 

the ability to make a living in his very own community. So this legislation also establishes an independent Office of Ombudsman to 

ensure proper attention to miner complaints of unsafe conditions, 

and to protect whistleblowers from retaliation. 

In addition, we heard testimony that black lung disease is on the 

rise, and is showing up in even younger workers. We thought we 

were on the way to eradicating this disabling and often fatal disease, since black lung is entirely preventable if coal mine dust is 

properly controlled. Other countries have managed to do just that. 

Obviously, we have to get a handle on this immediately. Today’s 

bills revise critical health standards to respond to this alarming 

rise in black lung, and require MSHA to adopt the lower exposure 

limit recommended by the NIOSH. 

The S-MINER Act and the Miner Health Enhancement Act are 

critical to protect our miners and this hearing is very important. 

We have a very distinguished and knowledgeable panel of witnesses. 

And I am honored that all four of you are here. I look forward 

to your elaborating on these very important bills. I look forward to 

hearing your testimony. 

Now, I yield to the ranking member, Mr. Wilson. 

Mr. WILSON. Thank you. 

Madam Chairwoman, as we mark the first anniversary of the 

landmark MINER Act, thank you for convening this hearing on the 

legislative outlook for additional mine safety legislation in the 

110th Congress. 

Last year in the wake of the tragic events at Sago, Alma and 

Darby, Congress and the president enacted the most comprehensive overhaul of mine safety laws in a generation. The MINER Act 

encourages better mining communications, technology, more modern safety practices inside U.S. mines, and the improved enforcement of current mine safety laws. 

The bill passed the Senate without a single vote in opposition. It 

sailed through the House with only token opposition, and enjoyed 

broad support from both labor and industry, a true rarity in anyone’s estimation. 

Earlier this year in a full committee hearing, we learned that the 

Mine Safety and Health Administration, or MSHA, is on track to 

implementing each and every congressional mandate under the 

law, and throughout 2007 we have seen our nation’s mines return 

to the more typical safety trend we have seen throughout this decade: fewer accidents, fewer injuries, and most importantly, fewer 

fatalities. 

As we begin consideration of what steps to take next, it is important that we have a fuller grasp of just what impact the MINER 

Act currently is having and will have in the coming years. The concern that new legislation may disrupt or distract from the implementation of last year’s reforms is not an unfounded one. 

In fact, it is reflected in a letter sent just yesterday by nearly a 

dozen mine safety experts and academics to Chairman Miller and 

4

Ranking Member McKeon. I am hoping to gain perspectives on this 

concern today. 

Specifically, this letter raised the concerns with new legislation, 

writing, ‘‘The intense workload on mine management, including 

safety professionals and ultimately the miners who have to do the 

downstream MINER Act-related work, is too great at this time to 

contemplate further legislation.’’

Madam Chairman, I ask unanimous consent that this letter be 

entered into the record. 

Chairwoman WOOLSEY. Without objection. 

[The letter follows:]


wil-1.eps
5


wil-2.eps
6

Mr. WILSON. Thank you. 

Furthermore, Madam Chairwoman, I have serious concerns that 

the proposed legislation could in fact undermine the MINER Act in 

some key ways. For example, the MINER Act created an expert 

panel to weigh the current impact and future use of belt air inside 

mines. 

As a matter of fact, one of today’s witnesses, Dr. James Weeks, 

sits on this panel. The proposed legislation before us, however, will 

ban belt air altogether, not even taking into account the expert 

opinions and future recommendations of Dr. Weeks and his panel 

of colleagues, which I find deeply troubling. 

It is also almost always a bad idea for Congress to mistake itself 

as experts, when in fact the real experts are already dealing with 


wil-3.eps
7

the matter and, indeed, this instance is no exception. Speaking of 

experts, Madam Chairwoman, I would be remiss if I did not raise 

a point I raised to committee Democrats earlier this week. 

Because the majority explicitly refused to invite the chief federal 

mining regulatory agency, MSHA, to testify during this legislative 

hearing, my Republican colleagues and I did so, as it is imperative 

to receive the agency’s input on the potential ramifications of a second mine safety bill in less than a year. 

The point of a legislative hearing is to gather input from as 

many impacted stakeholders as possible, and heed their advice 

prior to acting on the bill. Not allowing one of those stakeholders 

to have a seat at the table not only defeats the purpose of the hearing, but it also raises serious questions about the legislation at 

hand, most notably: what are the supporters trying to hide? 

Indeed, these supporters indicate MSHA has testified before our 

committee earlier this year, which is true. But the fact is, that was 

weeks before H.R. 2768 and H.R. 2769 were introduced. Because 

committee Republicans invited a stakeholder typically invited by 

the majority through the course of standard practice, another 

stakeholder does not have a seat at today’s table. 

Aside from MSHA, no group is more impacted by the new mandates than the mining industry itself. Because of the majority’s insistence on limiting today’s panel to three union-affiliated witnesses and one regulatory witness, there is no industry representative to provide input and, most critically, answers to our questions. 

Looking out in today’s audience, I see a representative from the 

mining industry, Mr. Bruce Watzman from the National Mining 

Association. I had served on the mining council in South Carolina, 

and I know the Mining Association was very helpful in giving us 

broad information. Mr. Watzman testified before our panel this 

year as well. But similar to MSHA’s testimony, that was weeks before the new mine safety legislation was introduced. 

Like the three-person labor representation and MSHA’s representative on today’s panel, this stakeholder has the right to be 

heard. Indeed, our subcommittee has the responsibility to hear 

from him and ask him difficult questions about the far-reaching 

legislation before us. 

For this reason, Madam Chairwoman, I now move that the subcommittee call Mr. Watzman as a witness to testify and answer 

any questions with respect to H.R. 2768 and H.R. 2769 during today’s hearing. 

[The prepared statement of Mr. Wilson follows:]

Prepared Statement of Hon. Joe Wilson, Ranking Republican Member, 

Subcommittee on Workforce Protections 

Madam Chairwoman, as we mark the first anniversary of the landmark MINER 

Act, thank you for convening this hearing on the legislative outlook for additional 

mine safety legislation in the 110th Congress. Last year, in the wake of the tragic 

events at Sago, Alma, and Aracoma, Congress and the President enacted the most 

comprehensive overhaul of mine safety laws in a generation. 

The MINER Act encourages better mining communications technology, more modern safety practices inside U.S. mines, and improved enforcement of current mine 

safety laws. The bill passed the Senate without a single vote in opposition, sailed 

through the House with only token opposition, and enjoyed broad support from both 

labor and industry—a true rarity, in anyone’s estimation. Earlier this year, at a full 

committee hearing, we learned that the Mine Safety and Health Administration—

or MSHA—is on track in implementing each and every congressional mandate 

8

under the law, and throughout 2007, we have seen our nation’s mines return to the 

more typical safety trend we have seen throughout this decade—fewer accidents, 

fewer injuries, and most importantly, fewer fatalities. 

As we begin consideration of what steps to take next, it is important that we have 

a fuller grasp of just what impact the MINER Act currently is having and will have 

in the coming years. The concern that new legislation may disrupt or distract from 

the implementation of last year’s reforms is not an unfounded one. In fact, it is reflected in a letter sent just yesterday by nearly a dozen mine safety experts and academics to Chairman Miller and Ranking Member McKeon, and I’m hoping to gain 

perspectives on this concern today. 

Specifically, this letter raised concerns with new legislation, writing—‘‘The intense 

workload on mine management, including safety professionals, and ultimately the 

miners who have to do the downstream MINER Act-related work is too great at this 

time to contemplate further legislation’’. Madam Chairwoman, I ask unanimous consent that this letter be entered into the record. 

Furthermore, Madam Chairwoman, I have serious concerns that the proposed legislation could—in fact—undermine the MINER Act in some key ways. For example, 

the MINER Act created an expert panel to weigh the current impact and future use 

of belt air inside mines. As a matter of fact, one of today’s witnesses, Dr. Weeks, 

sits on this panel. The proposed legislation before us, however, will ban belt air altogether, not even taking into account the expert opinions and future recommendations of Dr. Weeks and his panel colleagues, which I find to be deeply troubling. 

It is almost always a bad idea for Congress to mistake itself with experts when—

in fact—the real experts are already dealing with a matter, and, indeed, this instance is no exception. 

Speaking of experts, Madam Chairwoman, I would be remiss if I did not raise a 

point I raised to Committee Democrats earlier this week. Because the Majority explicitly refused to invite the chief federal mining regulatory agency—MSHA—to testify during this legislative hearing, my Republican colleagues and I did so, as it is 

imperative to receive the agency’s input on the potential ramifications of a second 

mine safety bill in less than a year. The point of a legislative hearing is to gather 

input from as many impacted stakeholders as possible and heed their advice prior 

to acting on the bill. Not allowing one of those stakeholders to have a seat at the 

table not only defeats the purpose of the hearing, but it also raises serious questions 

about the legislation at hand—most notably, ‘‘what are its supporters trying to 

hide?’’ Indeed, these supporters indicate that MSHA has testified before our Committee earlier this year, which is true. But the fact is, that was weeks before both 

H.R. 2768 and H.R. 2769 were introduced. 

Because Committee Republicans invited a stakeholder typically invited by the Majority through the course of standard practice, another stakeholder does not have 

a seat at today’s table. Aside from MSHA, no group is more impacted by the new 

mandates more than the mining industry itself. And because of the Majority’s insistence on limiting today’s panel to three union-affiliated witnesses and one regulatory 

witness, there is no industry representative to provide input and, most critically, answer our questions. 

Looking out into today’s audience, I see a representative from the mining industry—Mr. Bruce Watzman from the National Mining Association. Mr. Watzman testified before our panel this year as well, but—similar to MSHA’s testimony—that was 

weeks before the new mine safety legislation was introduced. Like the three-person 

labor representation and MSHA’s representative on today’s panel, this stakeholder 

has the right to be heard. And indeed, our subcommittee has the responsibility to 

hear from him and ask him difficult questions about the far-reaching legislation before us. 

For this reason, Madam Chairwoman, I now move that the Subcommittee call Mr. 

Watzman as a witness to testify and answer questions with respect to H.R. 2768 

and H.R. 2769 during today’s hearing. 

Chairwoman WOOLSEY. Well, thank you, Mr. Wilson. I will respectfully deny your request. 

Mr. KLINE. Madam Chair? Parliamentary inquiry. 

It seems to me that the ranking member’s motion is entirely germane. Could I ask under what rule of the House, what authority 

you can deny unilaterally such a motion? 

Chairwoman WOOLSEY. Well, as the chair of this committee and 

as our precedent has in the past, if we have four witnesses, one is 

9

the minority party and the other three are the majority party. If 

we had had four and two, it would have been different. 

But I would like to point out that the industry representative has 

been here before us. He has certainly been questioned. We are open 

and hope to hear that we will get written questions and he will receive written responses. 

Mr. KLINE. Thank you, Madam Chair. I don’t believe that was 

the answer to the parliamentary inquiry. 

Chairwoman WOOLSEY. Yes, I——

Mr. KLINE. As I stated——

Chairwoman WOOLSEY. Excuse me, this is my time. 

Mr. KLINE. He was here before the bills were introduced. 

Chairwoman WOOLSEY. You are talking on my time. I either 

yield to you or I don’t. 

Mr. KLINE. Madam Chair, was there an answer to the parliamentary inquiry? 

Chairwoman WOOLSEY. Gentlemen, I have made my decision. I 

made it in writing. I didn’t want to set something up. If we need 

more hearings, we will have more hearings, but today’s hearing is 

three to one, and you chose your representative, and I thank you 

very much. 

Mr. KLINE. Madam Chairman, may I strike the last word on the 

motion? 

Chairwoman WOOLSEY. Mr. Kline? 

Mr. KLINE. Thank you, Madam Chair. 

I think the point here is that we don’t have a full panel with all 

stakeholders represented. I understand that Mr. Wilson wrote a 

letter asking that MSHA be invited. You did respond. MSHA was 

not invited. The Republicans chose to make sure that the agency 

was here as a witness, but that meant that one of the key stakeholders is not here. 

Together, we essentially have three union representatives before 

the subcommittee this afternoon. That is despite the fact that according to the Energy Information Association, unions represent 

approximately 25 percent of the mine workers in this country 

today. Claiming that we are even representing a majority of the 

coal miners today is not accurate. 

Members of the National Mining Association will be the ones ultimately responsible for ensuring that any requirement we consider 

is implemented properly. Given the success of last year’s MINER 

Act, when all the stakeholders had input, it is only responsible for 

us to again ensure that all stakeholders have input today. 

Agreement on the front end guarantees success at the implementation stage. Mine operators aggressively are implementing the 

MINER Act provisions, updating training programs, placing additional self-contained self-rescuers, and standing ready to put improved communications technology in the mines as soon as it has 

been approved by MSHA. 

Further, when the committee held our mining oversight hearings 

on March 20 and May 28, months ago, the two pieces of legislation 

before us had not been introduced. Any assertion that all the stakeholders who would be affected by H.R. 2768 and H.R. 2769 have 

had the opportunity to present their concerns to the members of 

the committee is just not true. 

10

On July 22, that is just days ago, 2007, the Pittsburgh Post Gazette printed an editorial from Dr. Larry Grayson, professor of mining engineering and a witness before the committee earlier this 

year. Dr. Grayson discussed the MINER Act and concluded that, 

‘‘Congress has time to carefully consider additional health and safety issues with the participation of everyone involved, but all the 

stakeholders currently pursuing good-faith efforts should not be 

distracted from the urgent work before them.’’

I ask unanimous consent that this article be placed in the record, 

and further I would suggest that we heed the advice of Dr. Grayson 

to include all of the stakeholders at this witness table by supporting Mr. Wilson’s motion. 

Chairwoman WOOLSEY. Without objection, your testimony will be 

set into the record. 

[The newspaper article referred to follows:]

[From the Pittsburgh Post-Gazette, July 22, 2007]

Sunday Forum: Mine Mania

Congress should let the dust settle from last year’s mine-safety legislation before writing some more, suggests 

mining engineer R. Larry Grayson 

Few countries rely on coal more than the United States, and few states mine more 

coal than Pennsylvania. As a result, ensuring the safety of our coal miners, especially those who work under ground, is among the most challenging and urgent 

tasks in the American workplace. 

The urgency of the task was sadly reinforced by the mine tragedies early last year 

in the coalfields of Appalachia that claimed the lives of 19 miners. While coal-mining communities dealt with their grief, mine operators, government regulators and 

other safety professionals set about determining why those fatalities occurred in 

light of the strong safety record that had characterized U.S. mining for much of the 

past decade. 

In the months following these accidents, the entire mining community engaged in 

a multi-state effort to identify practical steps that should be taken to prevent such 

tragedies from occurring again. Fortunately, many of the improvements suggested 

for mine rescue, technology and training were included in a comprehensive minesafety law Congress passed last summer. 

The Mine Improvement and New Emergency Response Act of 2006 was overwhelmingly endorsed by members of Congress from both parties and supported by 

mine-safety professionals, mine operators and miners, as well as by occupational 

health professionals and developers of safety technology. The new mine-safety law 

calls on the nation’s coal mines to adopt certain measures immediately and other 

procedures and safety technologies as soon as needed tests are completed and new 

equipment becomes commercially available. 

But barely a year into our experience with this new law—implementing its many 

provisions, ordering and installing new safety equipment and training miners in 

new safety procedures—government agencies, safety professionals and the miners 

doing the work face an unexpected complication that threatens to undermine the 

MINER Act’s goals. Proposals now before Congress would impose entirely new requirements on coal-mine operators and mine inspectors that would greatly disrupt 

the important focus on implementing the emergency rescue provisions of the 

MINER Act. 

Since passage of the MINER Act, a dramatic turnaround in mining fatalities in 

2007 appears to have put us back on track to achieve significant year-over-year improvements in mine safety. But without full implementation of the MINER Act provisions, this year’s improved performance could prove ephemeral. 

Further experience with the MINER Act may yet determine that adjustments are 

needed. We may learn that alternative equipment and training procedures could 

yield even better results than those now in use. But we do not know that yet, and 

we won’t know until we have had sufficient experience with the new training procedures, equipment and mining practices the act requires. 

The MINER Act is not perfect, but it mandates a comprehensive range of practices that are making a difference. Putting all of its provisions in place at all of the 

nation’s 550 underground coal mines has been a major undertaking. Operators are 

trying to implement some provisions before federal regulators have issued regulaVerDate 0ct 09 2002 14:58 Apr 06, 2008 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-59\36731.TXT HBUD1 PsN: DICK
11

tions for them. Still other provisions are disputed by federal and state regulators 

who disagree on standards and specifications. 

The result has been chaos for federal and state agencies, safety professionals and 

the miners who are trying to implement the law. For example, to isolate abandoned 

mine sections that could pose safety hazards, one mine’s workforce has been forced 

to build three sets of seals to three different specifications. 

It surprises no one that many experienced inspectors, mine managers and supervisors are leaving the industry, exacerbating an already critical shortage of mining 

industry personnel. 

Complying with the MINER Act is not the only challenge the industry faces. The 

mine tragedies last year also spurred many good operators to take voluntary steps 

to improve mine safety. Many of these steps were recommended by an independent 

Mine Safety Technology and Training Commission that I chaired last year. 

Once adopted, these voluntary measures undoubtedly will improve the safety of 

coal miners beyond the level prescribed by the MINER Act, thereby setting the high 

standard of safety performance desired by good people throughout the industry. Additional legislation now would not only intensify the chaos in the coal fields, but also 

would stifle incentives to adopt these voluntary steps, which are essential for a truly 

new paradigm of mine safety based on prevention and risk management. 

Let’s not jeopardize the effective implementation of the MINER Act. Achieving the 

act’s goals is far too important for the protection of miners, especially during emergencies. 

Congress has time to carefully consider additional health and safety issues with 

the participation of everyone involved, but all of the stakeholders currently pursuing 

good-faith efforts should not be distracted from the urgent work before them. 

Mr. KLINE. Thank you, Madam Chair. I yield back. 

Mr. WILSON. Parliamentary inquiry? 

Chairwoman WOOLSEY. Excuse me. I would like to respond. 

Unfortunately, this is the advantage of being in the majority. I 

have been on this committee for the last 15 years and I can tell 

you absolutely this is the way the precedent says this is how we 

handle this. I assure you that any written testimony will be taken 

seriously, and that if there is a need for another hearing, we will 

have another hearing. 

Mr. WILSON. I have a parliamentary inquiry. 

Chairwoman WOOLSEY. Yes? 

Mr. WILSON. Madam Chairwoman, my motion is in order. House 

rule 11 authorizes committees and subcommittees to call witnesses. 

My motion would direct the subcommittee to call an additional witness, an action that is undeniably within the authority of the subcommittee. In addition, my motion is timely offered and germane 

to the subject matter of today’s hearing. 

Under what authority is the chair refusing to consider my motion? It would aid my understanding if you could refer me to a specific House or committee rule which permits the chair to refuse 

consideration of the motion? 

Chairwoman WOOLSEY. The question before us is on the motion 

of Mr. Wilson. 

Those in favor, say, ‘‘Aye.’’

Those opposed, ‘‘No.’’

Mr. KLINE. I request a recorded vote. 

Chairwoman WOOLSEY. We will need to get the clerk to call the 

roll. So we are going to sit around a little while. 

The clerk will call the roll. 

The CLERK. Chairwoman Woolsey? 

Chairwoman WOOLSEY. No. 

The CLERK. Chairwoman Woolsey votes no. 

Mr. Payne? 

12

[No response.] 

Mr. Bishop? 

Mr. BISHOP. No. 

The CLERK. Mr. Bishop votes no. 

Ms. Shea-Porter? 

[No response.] 

Mr. Hare? 

Mr. HARE. No. 

The CLERK. Mr. Hare votes no. 

Mr. Wilson? 

Mr. WILSON. Aye. 

The CLERK. Mr. Wilson votes aye. 

Mr. Price? 

[No response.] 

Mr. Kline? 

Mr. KLINE. Aye. 

The CLERK. Mr. Kline votes aye. 

Chairwoman WOOLSEY. The clerk will report. 

The CLERK. Madam Chair, two members vote ‘‘yes’’ and three 

members vote ‘‘no.’’

Chairwoman WOOLSEY. The motion is denied. 

Now, I would like to introduce our very distinguished panel of 

witnesses here before us this afternoon. 

And welcome you all. 

For those of you who have not testified before the committee, let 

me explain our lighting system and the 5-minute rule. Everyone, 

including members, are limited to 5 minutes of presentation and/

or questioning. So please know that when the green light is illuminated, you begin to speak. When you see the yellow light, it means 

you have 1 minute remaining. When you see the red light, it means 

your time has expired and you need to conclude your testimony. 

Be certain to turn on your microphone, otherwise we start yapping at you, so that would be good. No, we are not going to cut you 

off mid-sentence, so you can finish your thoughts and go on with 

that. 

So now, it is my honor to introduce the witnesses in order that 

we will hear them. 

First, Kevin Stricklin is the administrator of Coal Mine Safety 

and Health at the Mine Safety and Health Administration. Having 

been appointed to that post in April of 2007, he has worked for 

MSHA since 1980. As administrator, Mr. Stricklin oversees about 

11 districts, which contain about 600 underground mines and 750 

surface mines. He is a graduate mining engineer from the University of Pittsburgh. 

Dennis O’Dell is the administrator for occupational health and 

safety at the United Mine Workers of America. He has been with 

the UMW since 1993. He is the chair of the joint industry committee between the UMW and the National Bituminous Coal Operators Association, and was appointed to the NIOSH Mine Safety 

and Health Research Advisory Committee in 2006. He was educated at Fairmount State College in West Virginia and Westland 

College. 

Mr. Jim Weeks is a certified industrial hygienist who has worked 

on occupational health and safety problems in the mining industry 

13

since 1983. He has over 50 publications in the peer-reviewed scientific literature and is senior editor of Preventing Occupational 

Disease and Injury, published by the American Public Health Association. He has served on many advisory committees, including a 

panel of the National Academy of Sciences to evaluate NIOSH and 

their mining programs, and the MSHA Advisory Committee on 

Respirable Dust. He received an engineering degree from the University of California-Berkeley. He is a doctor of sciences that he received from the Harvard School of Public Health. 

Michael Wright is the director of health, safety and environment 

for the United Steelworkers, and has been with the steelworkers 

since 1977. He is a former member of the Department of Labor’s 

National Advisory Committee on Occupational Health and Safety 

and is a current member of EPA’s Clean Research Advisory Committee. He was trained as an industrial engineer at Cornell University, and as an industrial hygienist at the Harvard School of Public 

Health. 

I welcome all four of you. 

We will begin with you, Kevin Stricklin. 

STATEMENT OF KEVIN STRICKLIN, ADMINISTRATOR OF COAL 

MINE SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR 

Mr. STRICKLIN. Thank you. Chairman Woolsey, Ranking Member 

Wilson and members of the subcommittee, I am pleased to appear 

before you today to discuss H.R. 2768, the Supplemental Mine Improvement and Emergency Response Act of 2007, or the S-MINER 

Act. 

As you mentioned, I have 28 years of experience in mining, including 27 years with MSHA, where I currently serve as the administrator for coal mine safety and health. I am appearing here 

today before the committee to speak to the technical issues noted 

in my statement for the record. I cannot comment on any policy 

matters regarding these bills, as the administration has not yet 

completed its comprehensive review. 

Before discussing H.R. 2768, I would like to summarize briefly 

the progress that MSHA has made over the past year in implementing the MINER Act. Since the president signed the MINER 

Act in June of 2006, MSHA has made remarkable progress in implementing its provisions, including new penalties for late accident 

notifications, new penalties for unwarrantable failure violations, 

new penalties for flagrant violations, and a final rule to increase 

civil penalty amounts. 

We have also implemented a requirement to provide breathable 

air to trapped miners; a requirement that mine operators purchase 

SCSR training units and electronically submit their SCSR inventories to MSHA. We have put into effect an emergency temporary 

standard on mine seals that significantly increases the strength 

standard for mine seals to 50 psi, 120 psi, and more than 120 psi 

when conditions exist that may create pressures in excess of 120 

psi. 

We have also approved 22 post-accident communication and 

tracking systems, including six new devices; initiated a final rule 

to strengthen mine evacuation practices. As of today, MSHA has 

approved over 97 percent of the emergency response plans for the 

14

active mines. Implementing the MINER Act is a high priority, 

along with hiring and training new inspectors and improving enforcement of the current regulations. 

I would now like to turn to the technical analysis of H.R. 2768. 

Several of the provisions in H.R. 2768 would cause administrative 

problems for MSHA. Some will be problematic to implement and 

others would actually weaken current safety and health standards 

that we administer. A few of these concerns would be section 4(b) 

concerning underground refuge. 

Mandating refuge chambers preclude other refuge options that 

may provide greater protection to miners such as boreholes to the 

surface from locations further than 1,000 feet from the working 

face. In addition, refuge chambers may not be practical in all underground mining situations such as underground mines with coal 

seams no higher than the table that we are sitting act. 

Section 4(c)(2) concerning mine seals. The legislation creates an 

incentive for mine operators to build seals at a lower strength level 

because it requires continuous mortaring behind all seals no matter 

how strong the seals are. Although H.R. 2868 requires mortaring 

behind all seals, it does not prescribe what actions a mine owner 

should take if they find an explosive atmosphere behind the seal. 

The requirement that mine operators sample behind mine seals 

through boreholes that were drilled from the surface also raises a 

couple of concerns. Number one, it is not always feasible to sample 

from the surface due to geologic conditions and surface property 

rights. And number two, boreholes with metal casings introduce 

other safety hazards in the sealed areas that may be liberating 

methane. 

The notification of emergency and serious incidents, this section 

of the MINER Act sets up a two-tiered system of notification for 

mine incidents. Last year, MSHA issued regulations requiring mine 

operators to notify MSHA within 15 minutes of an incident. If this 

MINER Act were to be enacted, it would establish emergency notification procedures that are less stringent than the current requirements. 

In section 6(g), accident investigations, this section of the MINER 

Act raises a number of complex policies. However, MSHA takes its 

accident investigation responsibilities very seriously as part of our 

law enforcement mandate. Our accident reports form the basis for 

our civil and criminal enforcement actions, and must stand along 

as the government’s authoritative accident report. 

Thank you for allowing me to testify today on this technical review of this legislation. I look forward to answering any questions 

that you may have. 

[The statement of Mr. Stricklin follows:]

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Chairwoman WOOLSEY. Thank you, Mr. Stricklin. 

Mr. O’Dell? 

STATEMENT OF DENNIS O’DELL, ADMINISTRATOR OF 

OCCUPATION SAFETY AND HEALTH, UNITED MINE WORKERS 

Mr. O’DELL. Madam Chair and other members of the subcommittee, my name is Dennis O’Dell. I am currently the administrator of occupational health and safety for the United Mine Workers of America. Probably what I am more proud of is, prior to this, 

I was a natural coal miner that worked for close to 20 years. 

I would like to thank you for inviting me to testify before you 

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22

This committee has an opportunity to change history by better 

protecting our nation’s most valuable resource, the miners. Before 

and after the enactment of the MINER Act, the union has always 

maintained that it was a good first step for protecting miner safety. 

But we have also consistently expressed that Congress needed to 

continue to push forward with improvements in mine health and 

safety. The job is not done. 

This legislation is more than just another step in the right direction. It answers many of the most pressing safety and health needs 

of our miners today. This legislation is also especially important because it is designed to prevent dangerous situations from happening in the first place. The enhanced enforcement authority that 

this legislation provides to the Mine Safety and Health Administration will also be critical if the agency embraces their new authority 

and actually uses it. 

Irresponsible coal operators need to know that MSHA is serious 

about enforcing all the laws on the books. The UMWA is very supportive of the new respirable dust standards included in this legislation. We have worked long and hard to reduce the incidence of 

black lung in coalminers. This is a preventable disease. It has not 

gone away, and we believe this legislation will mean a giant step 

forward for all coal miners. 

I sit here today and I find it hard to believe that anyone in the 

mining industry would be against providing a means to improve 

safety. I have heard comments from some industry folks that there 

is no need to act. They say that based on this year’s fatalities, the 

industry is back on track. I ask you: Is 24 mine fatalities so far this 

year acceptable? Do you think the family members of these 24 miners who have died believe that the industry is back on track? 

You are going to hear comments like, it is too early to act. I ask 

you to do the math. From 1977 to 2006 equals 29 years since any 

major changes have been made to improve miners’ health, safety 

and training, and those changes came about last year as the original 1969 act did, and was motivated by the blood of the miners. 

I am asking you today: Should we wait another 29 years and let 

more miners die? Or should we be, as this new legislation suggests, 

proactive and prevent more deaths and injuries? 

The industry may try to argue that if the use of belt air is eliminated, many mines won’t be able to operate because they can’t control their roof. I spent many hours searching NIOSH’s mining page 

looking for research and studies to support this statement. I have 

yet to find it. 

You may hear that this legislation will harm small operators. I 

am telling you today that is nonsense. Mining laws need to be applied to all mine operators, large and small. It is time to level the 

playing field and give all miners the same level of protection no 

matter the size of the mine or the number of employees an operator 

has on its payroll. 

I recently read this in a newspaper article, and this statement 

was from the chair of the Mine Safety Technology and Training 

Commission that was formed after the Sago and Alma disasters: 

‘‘Complying with the MINER Act is not the only challenge the industry faces. The mine tragedies last year also spurred many good 

operators to take voluntary steps to improve mine safety. Many of 

23

these steps were recommended by an independent Mine Safety and 

Technology Training Commission. Once adopted, those voluntary 

measures undoubtedly will improve the safety of coalminers beyond 

the level prescribed by the MINER Act, therefore setting the high 

standard of safety performance desired by good people throughout 

the industry. Additional legislation now would not only intensify 

the chaos in the coal fields, but would also stifle incentives to adopt 

these voluntary steps which are essential for a truly new paradigm 

of mine safety based on prevention and risk management.’’

Madam Chair and members of the committee, the problem with 

this statement is that these steps and measures are on a voluntary 

basis. Some of the more reputable operators were, as he put it, 

good operators may do this. This also relies on the use of risk management that we are now learning is not the best tool provided to 

protect miners and should never be allowed as a means to replace 

regulatory enforcement by our state and federal agencies. 

Others, or the bad actors/operators, are doing nothing. The only 

way that protection will be afforded across the board is through enforceable regulations such as those written in the proposed SMINER Act. Some say it would be a burden on the industry and 

the regulators. What about the burden of the miners who have and 

continue to die? Or the family members left behind because of the 

inadequate safety provisions and mandatory regulations? I propose 

to you that the burden that may be placed on coal operators does 

not even come close to that. 

In 1969—and I am wrapping up—coal operators cried to Congress that if they were placed under the standards introduced in 

the 1969 Mine Act, the industry would fold. Yet we are still here 

today in 2007, safer than we were in 1969. 

Madam Chair, the UMWA strongly supports this legislation. We 

commend you and Representatives Miller, Rahall and others for introducing it, as well as those who have signed on. 

I thank you, and I will be happy to answer questions. 

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

Prepared Statement of Dennis O’Dell, Administrator of Occupation Safety 

and Health, United Mine Workers 

Madam Chair, Congressman Miller and other members of the Subcommittee, my 

name is Dennis O’Dell, Administrator of Occupational Health and Safety for the 

United Mine Workers of America (‘‘UMWA’’), the union that for 117 years has been 

an unwavering advocate for miners’ health and safety. I would like to thank you 

for inviting me to testify before you today. This Committee has an opportunity to 

change history by better protecting our nations most valuable resource—the Miners. 

Congress has played a significant role in advancing miners’ health and safety and 

I would like to express my appreciation to the leadership of this Committee and others for your efforts to further protect the health and safety of all miners. Your continued oversight is critical to ensuring miners will go home safely at the end of their 

shift. 

Shortly after the mining disasters in 2006, many from the mining community testified at various Senate and Congressional hearings about the inadequate protections for miners’ health and safety. Congress answered and moved to enact the 

MINER Act. That law includes several important provisions aimed at helping miners after a mine emergency develops, such as the use of underground safety chambers, wireless communications, tracking devices, increased amounts of breathable 

air available to miners, and many other important safety protections. 

Before and after the enactment of the MINER Act, the Union has always maintained that it was a good first step to protecting miners safety, but we have also 

consistently expressed that Congress needs to continue to push forward with improvements in mine health and safety. The job is not done. 

24

The legislation introduced in Congress by Representatives George Miller (D-Calif.) 

and Nick Rahall (D-W.V.) is much more than just another step in the right direction, it answers many of the most pressing safety and health needs of miners. 

This legislation is especially important because it will help prevent dangerous situations from happening in the first place. For example, had the requirements in this 

legislation on seals, on belt flammability and on banning the use of ventilating the 

working faces of mines with belt air been in place prior to 2006, the tragic deaths 

at Sago and Aracoma very likely could have been prevented. 

The enhanced enforcement authority this new legislation provides the Mine Safety and Health Administration (MSHA) will also be critical to ensuring the safety 

and health of miners but, as always, only if the agency embraces that new authority 

and actually uses it. Irresponsible coal operators need to know that MSHA is serious 

about enforcing all the laws on the books and also enforcing the penalties for noncompliance. 

The UMWA is very supportive of the new respirable dust standards included in 

this legislation. We have worked long and hard to reduce the incidence of black lung 

in coal miners, yet have been consistently frustrated by government inaction at 

nearly every turn. This is a preventable disease that has not gone away, and we 

believe this legislation will mean a giant step forward for all coal miners. 

I find it hard to believe that anyone in the mining industry would be against providing a means to improve safety. I have heard comments from some industry folks 

that there is no need to act, they say that based on this years fatalities, the industry 

is back on track—I ask you, is twenty-four (24) mining fatalities (9 coal/15 M/NM) 

so far this year acceptable? Do you think the family members of these 24 miners 

who have died believe that the industry is back on track? 

You may hear comments like it is too early to act. I ask you to do the math, 1977 

to 2006 equals 29 years since any major changes have been made to improve miners 

health safety and training, and this came about, as the original 1969 Act, by the 

blood of our miners—should we wait another 29 years and let more miners die, or 

should we be, as this new legislation suggests, proactive and prevent more deaths 

and injuries. 

The industry may try to argue that if the use of belt air is eliminated, many 

mines won’t be able to operate because they can’t control their roof. I spent many 

hours searching NIOSH’s mining page looking for research and studies on the use 

of belt air. All I could find was reports associated with the hazards of the use of 

belt air with fires, respirable dust, smoke roll back, and escape hazards. I continued 

to search NIOSH’s section on roof control problems and how to control all types of 

adverse roof conditions, I didn’t see using 2 entry systems and belt air as one of 

those remedies to control adverse roof conditions. 

You may hear that this legislation will harm small mine operators. Its time that 

Congress and mine enforcement agencies quit buying into such nonsense. Mining 

laws need to be applied to all mine operators, large and small. Its time to level the 

playing field and give all miners the same level of protection no matter the size of 

the mine or number of employees an operator has on their payroll. 

You will hear from those who oppose this bill complaints about the new seal requirements—for example, it has been reported in an interview that one mines workforce has been forced to build three sets of seals to three different specifications because there are three (3) different seal standards on the psi pressure strength ratings by which they are to build their seals. They, meaning the industry, claims this 

is causing chaos and confusion. They don’t tell you they have been given the option 

to continuously monitor the areas behind these seals taking all of the guesswork out 

of it. We, meaning the UMWA and members from the Industry, have meet jointly 

with MSHA on how to address these seal construction and monitoring problems. It 

was my understanding that we were well on our way to resolving their concerns, 

and if not the UMWA stands committed to working with the Industry and MSHA 

to help resolve their concerns. 

I recently read in a newspaper article this statement from the chair of the Mine 

Safety Technology and Training Commission that was formed after the Sago and 

Alma disasters. 

‘‘Complying with the MINER Act is not the only challenge the industry faces. The 

mine tragedies last year also spurred many good operators to take voluntary steps 

to improve mine safety. Many of these steps were recommended by an independent 

Mine Safety Technology and Training Commission.’’

‘‘Once adopted, these voluntary measures undoubtedly will improve the safety of 

coal miners beyond the level prescribed by the MINER Act, thereby setting the high 

standard of safety performance desired by good people throughout the industry. Additional legislation now would not only intensify the chaos in the coal fields, but also 

25

would stifle incentives to adopt these voluntary steps, which are essential for a truly 

new paradigm of mine safety based on prevention and risk management’’. 

The problem with this statement is that the steps and measures are on a voluntary basis by some of the more reputable, or as he put it ‘‘good operators’’. This 

also relies on the use of ‘‘risk management’’ that we are learning is not the best 

tool provided to protecting miners, and should never be allowed as a means to replace regulatory enforcement by our State and Federal agencies. Others, or the bad 

actors/operators are doing nothing. The only way that protection will be afforded 

across the board is through enforceable regulations such as those written in the proposed S-Miner Act. Some would say it would be a burden on the industry and the 

regulators. What about the burden of the miners who have died over the years, and 

the family members who has been left behind because of inadequate safety provisions and mandatory regulations? I propose to you that the burden that may be 

placed on coal operators does not even come close to that. 

In 1969, coal operators cried to Congress, that if they were placed under what was 

then introduced as the 1969 Mine Act, the industry would fold. Yet we are still here 

in 2007, safer that we were prior to 1969. In a day and age when we rely on coal 

to supply the majority of our Nation’s energy demands so that we are not dependant 

upon other countries resources, we need to continue to improve our safety record 

so that we can reach our goal of zero accidents and zero fatalities. 

Madam Chair, The UMWA strongly supports this legislation in all aspects, and 

commends you, Representatives Miller and Representative Rahall for introducing it, 

as well as all of those who have signed on as co-sponsors. Your continuing commitment to improving mine health and safety is greatly appreciated by coal miners and 

their families across America. 

I thank you and will be happy to try to answer any questions you may have. 

Chairwoman WOOLSEY. Thank you, Mr. O’Dell. 

Dr. Weeks? 

STATEMENT OF JAMES WEEKS, SAFETY AND HEALTH 

CONSULTANT 

Mr. WEEKS. Chairman Woolsey and other members of the committee, my name is Jim Weeks. I am a consultant industrial hygienist, appearing today on behalf of the United Mine Workers. 

Congressman Wilson noted earlier that I am also a member of 

the technical study panel investigating the issue of the use of belt 

air that was mandated by the MINER Act. I should be clear today 

that I am appearing on behalf of the United Mine Workers and not 

in any way as a member of that technical study panel. I discussed 

this matter with the ethics officer at the Department of Labor and 

received those guidelines from him. 

Anyway, thanks for inviting me to testify, but more important, 

I wish to thank you for providing the leadership to improve the 

health and safety of miners. 

Mining, unfortunately, in the United States remains the most 

dangerous industry in the United States and worldwide. Mines in 

the U.S. remain the least safe of mines in advanced industrial 

countries. So there is lots of room for improvement. 

I wish to speak to two aspects of the proposed legislation. First, 

the revision of the dust standard from two milligrams to one milligram for a 10-hour work-shift; and second, use of the personal dust 

monitor, the PDM, for measuring exposure to respirable dust. 

Over the past 5 years, there have been several clusters of black 

lung cases identified among miners who started their mining careers well after the two milligram standard became effective. Many 

of these cases were of the more advanced form, progressive massive 

fibrosis, or PMF. This is a condition that is the most serious form. 

26

It allows for an automatic entitlement of benefits under the federal 

black lung program for total disability. 

Miners with PMF suffer and die early. There is no cure. We don’t 

know the names of these miners. We don’t know the mines where 

they worked. There is no specific event that caused these tragedies. 

But these cases occurred because of exposure to too much dust day 

after day after day over decades, in a kind of slow-motion tragedy. 

These cases resulted from systemic failure. Before black lung 

kills, it tortures its victims with breathlessness and suffering. 

These lives will not end with a bang, but with a whimper. These 

cases did not occur because we—and by ‘‘we,’’ I mean the entire industry and operators, the union, the mine workers, MSHA and 

NIOSH—these cases did not occur because we don’t know how to 

control dust. 

Effective and feasible dust controls are well-known and are available throughout the industry. It was the failure to use these controls and the failure to enforce dust exposure limits, not the absence of knowledge that caused these cases. 

In 1995, NIOSH recommended that the dust standard be reduced 

from two milligrams for a work-shift to one milligram for a 10-hour 

work-shift. This recommendation was based on a comprehensive review of the scientific literature concerning coal workers’ pneumoconiosis and was based on data gained for U.S. miners in the 

United States over the past 30 years. 

The previous standard was based on research done in the United 

Kingdom and had to be adapted to the present situation. The study 

is scientifically sound and was thoroughly reviewed by NIOSH and 

by external reviewers. It was also reviewed by MSHA’s advisory 

committee on dust control which recommended that MSHA consider revising the dust standard based on the NIOSH criteria document. 

There are several important technicalities in the proposed legislation which I will just describe briefly. First, the one milligram 

limit is expressed as a 10-hour average. The current two milligram 

limit is an average over a shift. Miners now work longer shifts and 

when they do, they inhale more dust. Consequently, it is appropriate to adjust the exposure limit for shift length. 

Let me now turn to the personal dust monitor. I first became involved in mining dust issues in 1978. At that time, there was a direct-reading instrument being considered. Thirty years later, it is 

the same instrument and it is nowhere close to being implemented. 

The PDM provides real-time data at the time and the place where 

it is most useful. 

Under the current system, dust data arrives 1 to 2 weeks after 

the sample is taken. During that time, conditions change. It is impossible to find out what exactly might have caused an overexposure. But with the PDM, we can identify when and where and why 

overexposure occurred. 

One of the important benefits of the PDM is that by identifying 

dust sources in a timely manner and with precision, it makes it entirely feasible for mine operators to identify and reduce exposure 

to below the one milligram limit. I should note that—and I see my 

time is nearly up—but I should note that the union and a group 

of mine operators have been meeting over the past couple of years 

27

to try and find common ground so we could support the use of the 

PDM. We have agreed on a number of important areas. 

These are that MSHA should do all compliance sampling, which 

is consistent with what this legislation says; that the PDM should 

be the single approved instrument for measuring dust; and that 

MSHA should purchase the samplers and mine operators maintain 

them. There have been important changes in the industry over the 

past several years. I think the current technological environment 

allows us to take advantage of them. 

I would be happy to answer questions when we are finished. 

[The statement of Mr. Weeks follows:]

Prepared Statement of James L. Weeks, Sc.D., CIH, Consultant Industrial 

Hygienist to the United Mine Workers of America 

Mr. Chairman and other members of the committee, my name is Jim Weeks, I 

am a consultant industrial hygienist for the United Mine Workers of America. 

Thank you for inviting me to testify concerning this legislation and more important, 

thank you for providing the leadership to improve the health and safety of miners. 

Mining, unfortunately, remains the most dangerous industry in the US and mines 

in the US remain the least safe of mines in other technologically and economically 

advanced countries. There is lots of room for improvement and this legislation 

should make a big difference for miners and their families. 

I wish to speak to two aspects of the proposed legislation: First, revision of the 

dust standard from 2.0 mg/m3 to 1.0 mg/m3 for a ten hour work-shift and second, 

use of the personal dust monitor (PDM) for measuring exposure to respirable dust. 

If both of these measures are adopted and implemented, we can prevent black lung. 

Over the past five years, several clusters of black lung cases have been identified 

among miners who started their mining careers well after the 2 mg/m3 standard 

became effective.(Antao et al. 2005; MMWR 2006) Many of these cases were of the 

more advanced form, progressive massive fibrosis, the condition that allows for an 

automatic entitlement for federal black lung benefits for total disability. Miners 

with PMF suffer and die early. Medical treatment can alleviate some of the symptoms but there is no cure. 

We do not know the names of these miners, we do not know the mines where they 

worked, there is no specific event that caused these tragedies. The cases occurred 

because of exposure to too much dust day after day after day after day, for decades, 

in a slow motion tragedy. These cases resulted from systemic failures. These lives 

will not end with a bang but with a whimper. Before black lung kills, it tortures 

its victims with breathlessness and suffering. And it is all entirely preventable. 

They did not occur, however, because we (‘‘We’’ means the entire industry: operators, the Union, mine workers, MSHA, and NIOSH) do not know how to control 

dust. Effective and feasible dust controls are well known and available throughout 

the industry (Kissell FN 2003). It was the failure to use these controls and the failure to enforce dust exposure limits—not the absence of knowledge—that caused 

these cases. 

In 1995, NIOSH recommended that the dust standard be reduced from 2.0 mg/

m3 for a work shift to 1.0 mg/m3 for a ten hour work shift. (NIOSH 1995). This 

recommendation was based on a comprehensive review of the scientific literature 

concerning coal workers’ pneumoconiosis (CWP) and was based on data gained for 

U.S. miners over the past thirty years. The previous standard was based on research done in the UK where dust concentration is measured differently and which 

has required adjustments of measurements in the US to conform to the British dust 

measurements, the so-called MRE-equivalent dust level. A standard based on experience with US miners and using instruments developed in the US is a substantial 

improvement. 

This study is scientifically sound and was thoroughly reviewed by NIOSH and by 

other agencies in the Centers for Disease Control and by an international panel of 

external reviewers for its validity and the reliability of its findings. It was reviewed 

also by MSHA’s Advisory Committee on dust control which recommended that 

MSHA ‘‘* * * consider revising the dust standard.’’ based on the NIOSH Criteria 

Document. (p 50-54) The principal source of hesitation on the Advisory Committee 

was whether such a limit was feasible and not whether the science was valid. 

There are several important technicalities in the proposed legislation. First, the 

1 mg/m3 limit is expressed as a ten hour average. The current limit of 2 mg/m3 

28

is an average over a ‘‘shift,’’ assumed to be eight hours. That was the convention 

when the coal mine act of 1969 was adopted. Miners now work longer shifts and 

when they do, they inhale more dust. Consequently, we need to adjust the exposure 

limit so that it is proportionately lower for longer shifts to make it, as stated in the 

legislation, equivalent to 1 mg/m3 for ten hours. This is a common problem in industrial hygiene addressed by ‘‘Haber’s Rule.’’ (Armstrong TWA et al. 2005) 

A second technicality is that current MSHA practice is to add an error factor to 

the exposure limit before they issue a citation for non-compliance. In effect, this 

raises the exposure limit. The reason they do this is so that they have a ‘‘high degree of confidence’’ that exposure is, in fact, above the exposure limit. The problem 

with this approach is that errors in measuring dust concentration can occur as an 

under-estimate as well as an over-estimate of true concentration. By only considering an over-estimates, they give the benefit of doubt to mine operators at the expense of miners’ health. This legislation, the Advisory Committee, and the NIOSH 

Criteria Document all recommend against this practice (Advisory Committee 

1996;NIOSH 1995). 

This is not a trivial matter. Based on dust exposure data for longwall sections in 

2003, if MSHA issued citations for measured dust concentration over 2 mg/m3 rather than their Criterion Threshold Value, they would have issued 36% more citations 

than they in fact did. (Weeks JL 2006) 

Let me now turn to the Personal Dust Monitor (PDM). I first became involved in 

mining dust issues in mining in 1978 and the concern then was with a direct-reading dust instrument much like the PDM. Unfortunately, thirty years later, the 

hopes engendered by developments then remain unfulfilled. The PDM is a significant improvement over the current method for measuring dust concentration. 

(Volkwein JC et al. 2004) The current method uses a battery operated pump to collect respirable dust on a pre-weighed filter. This filter and supporting data are 

mailed to MSHA which weighs it and reports the concentration back to the mine 

operator. This process takes one to two weeks from the time the sample is taken 

to the time the information is returned to the mine operator. During this time, mining advances and conditions change. The information is practically useless for the 

purpose of finding dust sources and controlling exposure. It is also expensive. Cost 

per sample by the PDM is approximately one tenth of the cost per sample using 

the pump and filter. 

The PDM, on the other hand, provides real-time data at the time and place where 

it is most useful. It measures dust concentration and displays it on a screen for the 

mine operator and the miner so that dust sources can be identified and controlled 

and so that the miner could take the necessary steps to prevent his or her own overexposure. Information can be down-loaded at the end of each shift and made available to all. The instrument has been tested in mines and is reliable and accurate. 

The manufacturer is ready to begin production. 

One of the important benefits of the PDM is that by identifying dust sources in 

a timely manner and with precision, it makes it entirely feasible for mine operators 

to reduce exposure to below the proposed 1 mg/m3 exposure limit, thus removing 

concerns about whether it is feasible to reduce exposure below the 1 mg/m3 standard. 

The Union and a group of mine operators have been meeting over the past couple 

of years in order to identify some common ground so that that we could support the 

use of the PDM. We have come to agreement on a number of important matters. 

These are that the PDM should be used for two purposes: compliance determination 

and surveillance (to identify sources), that MSHA should do all compliance sampling 

(agreeing with the Advisory Committee), that the PDM should be the single approved instrument for measuring dust exposure, and that MSHA should purchase 

and mine operators should maintain these instruments. Remaining areas of disagreement include how to determine non-compliance and how to evaluate dust exposure for extended work shifts. 

There have been some important changes in the industry in recent years. On the 

negative side, fires, explosions, and respirable dust continue to take their toll. Work 

shifts have become longer. On the positive side, technological developments such as 

the PDM enable a much higher degree of control over dust concentrations, enabling 

us to reduce exposure and prevent black lung. The proposed legislation goes a long 

way to address these developments and I welcome it. I will be happy to answer any 

questions you have here and now or later, as these bills make their way through 

the process. Thanks again for your invitation. 

29

REFERENCE LIST

Advisory Committee. Report of the Secretary of Labor’s Advisory Committee on the 

elimination of pneumoconiosis among coal miners. 1-162. 1996. Washington, 

DC, US Department of Labor. 

Antao VC, Petsonk EL, Sokolow LZ, Wolfe AL, Pinheiro GA, Hale JM, Attfield MD. 

2005. Rapidly progressive coal workers’ pneumoconiosis in the United States: 

geographic clustering and other factors. Occup Environ Med 62:670-674. 

Armstrong TWA, Caldwell DJ, Verma DK. 2005. Occupational exposure limits: An 

approach and calculation aid for extended work schedule adjustments. J Occup 

Environ Med 2:600-607. 

Kissell FN. Handbook for dust control in mining. IC 9465 DHHS (NIOSH) 2003-147. 

2003. Washington, DC, Centers for Disease Control and Prevention. Information 

Circular. 

MMWR. 2006. Advanced cases of coal workers’ pneumoconiosis—two counties, Virginia, 2006. MMWR Morb Mortal Wkly Rep 55:909-913. 

NIOSH. Criteria for a recommended standard: Occupational exposure to coal mine 

dust. National Institute for Occupational Safety and Health. (NIOSH) 95-106. 

1995. Washington, DC, Centers for Disease Control and Prevention. 

Volkwein JC, Vinson RP, McWilliams LJ, Tuchman DP, and Mischler SE. Performance of a new personal respirable dust monitor for mine use. RI 9663; DHHS 

(NIOSH) 2004-151. 2004. Washington DC, Centers for Disease Control. Report 

of Investigation. 

Weeks JL. 2006. The Mine Safety and Health Administration’s Criterion Threshold 

Value policy increases miners’ risk of pneumoconiosis. Am J Ind Med 49:492-

498. 

Chairwoman WOOLSEY. Thank you, Dr. Weeks. 

Mr. Wright? 

STATEMENT OF MICHAEL WRIGHT, DIRECTOR OF HEALTH, 

SAFETY AND ENVIRONMENT, UNITED STEELWORKERS 

Mr. WRIGHT. Madam Chair, thanks for the opportunity to testify. 

My name is Michael Wright. I am the director of the health safety 

and environment department of the Steelworkers Union. We represent 850,000 workers in North America, including the majority of 

unionized metal and nonmetal miners in the United States and 

Canada. 

Dennis O’Dell and Jim Weeks talked about the need for this legislation in coal mining. Indeed, much of the MINER Act and much 

of H.R. 2768 is focused on underground coal mines. That is appropriate, given the terrible death toll in underground coal mines last 

year. 

However, MSHA’s jurisdiction extends to many mines beyond 

coal and to surface mines as well. In 2004, there were 51,000 workers in underground mines, although many of them worked in surface operations like hoists and prep plants. There were 151,000 

workers in surface mines. Coal accounts for about one-third of our 

nation’s miners, 73,000 out of a total of 220,000. 

Last year, there were almost twice as many deaths in coal mining as in metal and nonmetal operations, 47 versus 25. But in 

2005, the year previous, 35 metal and nonmetal miners died, as 

against 22 coal miners. So far this year, that pattern is repeating 

with 15 deaths in metal and nonmetal, and 9 in coal. 

Deaths in metal and nonmetal mining are as varied as the operations themselves. My written testimony gives several recent examples, all for mines organized by our union. I will summarize them: 

a miner killed in an underground limestone mine when a farm-type 

tractor that never should have been allowed underground, flipped 

30

over and crushed him; two miners killed in the same surface iron 

mine in six months—one by electrocution, one when a number of 

defective bolts on a stabilizer snapped off, causing a large mobile 

drill to tip over; one worker who was sprayed with toxic and corrosive hydrogen fluoride in an operation you might not think of as 

a mine—an aluminum refinery. 

Over the past few years, metal and nonmetal miners have also 

died in rock bursts, roof falls, falls from height, fires, explosions, 

drownings, and in many other ways. 

Some of the provisions of the S-MINER Act would make a big 

difference, particularly the language on the pattern of violations, 

unpaid penalties, and penalty assessment, as well as the ombudsman. We need this bill just as much in metal/nonmetal as we do 

in coal. 

Miners also die from occupational illnesses, and not just black 

lung. We now have 58 confirmed cases of mesothelioma among 

miners on the Iron Range in Minnesota. Mesothelioma is of course 

caused by asbestos exposure. That is a rate double the rate expected for the general population. MSHA’s asbestos standard is 

still where OSHA’s was 20 years ago—20 times higher than the 

current OSHA standard. That is a fact that the Miner Health Enhancement Act would quickly correct. 

Workers in cement plants regulated by MSHA are exposed to 

hexavalent chromium, a potent carcinogen, at a level more than 10 

times higher than the current OSHA standard. We have actually 

challenged that current OSHA standard in court as being lethally 

inadequate. We think it should be five times lower. That is where 

the NIOSH recommended the exposure limits as it should be. H.R. 

2769 would make that level the law. 

The MSHA hazard communications standard discriminates 

against miners by denying them information that has to be disclosed to their brothers and sisters in general industry. It is absurd 

that OSHA and MSHA have different rules governing what health 

information a worker is entitled to. H.R. 2769 would fix that as 

well. 

In my written testimony, there are some suggestions for fine-tuning both bills and I hope you give those suggestions some consideration. But the most important thing is that we need this legislation. The mine operators and their trade association would have it 

otherwise. ‘‘Let’s not act too quickly,’’ they say, ‘‘let’s wait.’’ Well, 

perhaps they can afford to. Our nation’s miners cannot. 

Let me make one other point for those who think that Congress 

did enough with the MINER Act and we don’t need to act now. 

How do you say to an iron miner, exposed to 20 times the level of 

asbestos that OSHA would allow, not to worry about that, because 

last year we required that more self-contained self-rescuers be required in coal mines? How do you tell a cement plant worker exposed to hexavalent chromium that she shouldn’t worry about that, 

because last year we fixed another problem that she doesn’t have? 

Every miner deserves protection. 

So thank you, Madam Chair and the cosponsors and all the 

members of the committee for your attention to this important 

issue. 

[The statement of Mr. Wright follows:]

31

Prepared Statement of Michael J. Wright, Director of Health, Safety and 

Environment, United Steelworkers 

Madam Chair, Congressman Miller and other members of the Subcommittee, my 

name is Michael Wright. I am the Director of Health, Safety and Environment for 

the United Steelworkers, a union representing 850,000 workers in North America, 

including the majority of unionized metal and non-metal miners in the United 

States and Canada. 

Last year, I had the honor of testifying at the February 13 Congressional Forum 

on Mine Safety and Health convened by Congressman Miller. Let me say what a 

pleasure it is to be here today, at an actual Congressional hearing considering mine 

safety—a hearing examining what more we should do after the passage of the 

MINER Act and the new MSHA rules that resulted from it. Let me also express 

our gratitude to Congressman Miller, Congresswoman Woolsey, and all the members of the committee who helped pass that legislation and who continue to support 

safe working conditions, not just for miners, but for all Americans. 

Dennis O’Dell and Jim Weeks have talked about the need for this legislation in 

coal mining. Indeed, most of the MINER Act and much of H.R. 2768 is focused on 

underground coal mines. That is appropriate, given the terrible death toll in underground coal mines last year. However MSHA’s jurisdiction extends to many mines 

beyond coal, and to surface mines as well. In 2004, there were 51,000 workers at 

underground mines, although many of them worked in surface operations like hoists 

and prep plants. There were 151,000 workers in surface mines. Coal accounts for 

about a third of our nation’s miners—73,000 out of a total of 222,000. Last year 

there were almost twice as many deaths in coal mining as in metal and non-metal 

operations (47 vs. 25), but in 2005, 35 metal/non-metal miners died as against 22 

coal miners. So far this year, that pattern is repeating, with 15 deaths in metal/

non-metal and 9 in coal. 

Deaths in metal and non-metal mines are as varied as the operations themselves. 

Let me give just a few examples, all from mines organized by our union. On January 31, 2005, David Wilson died at the Carmuse Corporation underground limestone 

mine in Butler, Kentucky, when the tractor he was operating flipped over and 

crushed him. The tractor had ridden up on a pillar. The front wheels were set very 

close together, so the tractor turned over easily. It also had no roll-over protection. 

On October 11, 2006, Andrew Reed was electrocuted at the Cleveland Cliffs 

United Taconite mine in Eveleth, Minnesota. He was a supervisor doing electrical 

troubleshooting. 

On January 2 of this year, John Dorton was killed at the Alcoa alumina refinery 

in Point Comfort, Texas. He was hit with a sudden release of hydrogen fluoride 

while he was cleaning out a valve. The company had not supplied the right protective equipment; nor was the valve cleaning operation sufficient to prevent the release. That plant is not a mine in the traditional sense, but because it processes 

minerals it is rightly under MSHA’s jurisdiction. 

On April 18 of this year, Deane Driscoll died at same United Taconite mine in 

Eveleth, Minnesota where Andrew Reed died six months earlier. He was operating 

a large mobile drill when several bolts snapped off a stabilizing cylinder, one by one, 

each failure leading to the next, causing the drill to tip and ejecting him from the 

cab. We do not yet know why the bolts failed, but they were either poorly designed 

or defective in their manufacture. 

Over the past few years, metal/nonmetal miners have also died in rock bursts, 

roof falls, fires, falls from height, in explosions and in many other ways. These 

deaths normally occur one at a time. They do not make the national news. But 

taken together, the toll is far greater than the toll from disasters like Sago. Of 

course, in the long run even more miners die from health hazards like coal dust, 

silica and diesel exhaust, and those deaths do not appear in the official statistics. 

Some of the changes over the past year will make a real difference. The new penalty structure gives MSHA increased authority to punish chronic violators, although 

the S-MINER Act would make further improvements. Immediate notification of accidents allows MSHA to better control an accident scene, and to help ensure that the 

problem does not spread further. After years of controversy, the metal/nonmetal diesel standard is finally in place, and should be free from further court challenges. 

Your committee facilitated many of these changes, either directly through the 

MINER Act, or by just keeping the heat on the Department of Labor. 

But more is needed. The S-MINER and the Miner Health Enhancement Acts 

would be great steps forward, and we are enthusiastic supporters of both. At the 

same time, both could benefit from some fine-tuning. Let me discuss three aspects 

of the bills in particular. 

32

1 Ronald S. Conti, ‘‘Responders to Underground Mine Fires,’’ NIOSH Pittsburgh Research Laboratory. 2Forty-six percent of metal/nonmetal fires in the study cited above involved mobile equipment. 

3Old timbers were a major cause of the Sunshine Mine fire, and more recently, a February 

8, 2001 fire at the Homestake Gold Mine in Lead, SD, which required the evacuation of 37 miners. 

First, we believe that many of the provisions of the MINER Act and the S-MINER 

Bill, designed to protect miners in emergency situations, should be extended to 

metal/nonmetal mines. We certainly support the advisory committee required by 

Section 4(j) of H.R. 2768, but some things could be done now. One example is the 

use of flame-resistant conveyor belts. Belt fires are less risky in metal/nonmetal 

mines, since the belts generally carry non-flammable materials. But belt fires are 

still a potential hazard, and there is no reason to allow inferior belts in any mine. 

We also believe that self-contained self-rescuers should be required in most underground metal/nonmetal mines. It is ironic that much of the impetus for SCSRs came 

from the 1972 disaster at the Sunshine Mine near Kellogg, Idaho—a silver mine—

where an underground fire killed 91 miners, all from carbon monoxide poisoning. 

Most of them were members of our union. Some of the factors that led to the fire 

have been eliminated by MSHA regulations, but 45% of the mine fires reported to 

MSHA between 1991 and 2000 occurred in metal/nonmetal mines.1 There are plenty 

of combustible materials in such mines—belts, fuels for mobile equipment and mobile equipment itself,2 old timbers,3 methane, combustible ores like gilsonite and 

other materials. The January 2006 fire in a Saskatchewan potash mine, which 

forced 72 miners into a refuge chamber for 28 hours because of toxic gases and 

smoke, started in some plastic piping. In short, there is no reason why Congress 

should not require MSHA to initiate prompt rulemaking extending the protection 

of SCSRs to underground metal/nonmetal miners. 

Second, let me comment briefly on the role of the Chemical Safety and Hazard 

Investigation Board, as contained in Section 6(g)(3) of H.R 2768. We are great fans 

of the CSB; they have done a superb job in recent investigations, especially the investigation of the March 23, 2005 disaster at BP’s Texas City Refinery, of which this 

Committee is well aware. The CSB could be quite useful in the investigations of 

chemical accidents, like the fatal hydrogen fluoride release at Alcoa Point Comfort 

which I mentioned earlier. But they have no expertise in mine issues like roof falls 

or belt fires. The CSB is needed outside of mining, because OSHA typically does not 

do accident investigations beyond what is needed to determine compliance. Nor does 

OSHA issue accident reports. MSHA, however, does. And in our experience, MSHA’s 

accident reports are excellent, concentrating on root causes well beyond mere compliance issues. The USW represents most of the unionized workers in chemical 

plants and oil refineries. That is where we need the CSB, not in duplicating what 

MSHA already does well. 

Nevertheless, there should be a limited role for the CSB in mining. First, MSHA 

should have the ability to ask the CSB for help in the areas of its expertise, such 

as where dangerous chemicals are involved, or in explosions. Second, the CSB 

should have the power to initiate its own independent investigations in chemical 

safety matters in mining. It can be argued that the CSB already has that authority, 

but the S-MINER Act could clarify it. 

Third, and turning to H.R. 2769, we applaud the bill’s authors, Congressmen Miller and Rahall, for addressing the issues of air contaminants, asbestos and hazard 

communication. As the bill recognizes, the MSHA air contaminant standards are 

badly out of date. We agree that the NIOSH Recommended Exposure Limits provide 

the best list through which the new and more protective permissible exposure limits 

could be established quickly. However, there are two problems with this approach 

which will have to be overcome. Many of the carcinogens referenced by NIOSH do 

not have quantitative PELs. Instead, they are simply designated as carcinogens, 

with the implication that they be controlled to the lowest feasible level. Two examples are cadmium and welding fumes. ‘‘Lowest feasible level’’ works fine as a recommendation, but it lacks the specificity required for a regulation. One solution 

would to be to default to the consensus standards established by the American Conference of Governmental Industrial Hygienists where a numeric REL does not exist. 

After all, the ACGIH threshold limit values were the basis for the first set of MSHA 

and OSHA air contaminant standards. 

The other problem is potentially more serious. Many of the NIOSH RELs were 

adopted without a consideration of technological feasibility, particularly in mining. 

It would be nice to set standards solely on the basis of health effects, but up until 

now the laws governing OSHA, MSHA and hazardous air pollutants under EPA 

have always recognized that standards must be not only protective, but must be feaVerDate 0ct 09 2002 14:58 Apr 06, 2008 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-59\36731.TXT HBUD1 PsN: DICK
33

sible as well. Therefore, we would suggest a slight modification of H.R. 2769 which 

would give MSHA the discretion (but not the requirement) to modify the PEL 

through notice and comment rulemaking if the Agency determines that the NIOSH 

REL may be infeasible in mining. 

We support Section 4 of the bill, on asbestos, with one addition. MSHA should 

certainly adopt the OSHA standard for asbestos, but should be free to add additional provisions. For example, MSHA might wish to include additional asbestiform 

minerals to the coverage of the standard, or work practices applicable to mining. 

Finally, we fully support Section 5, which would require MSHA to go back to the 

October 2000 Interim Final Rule on Hazard Communication in lieu of the June 2002 

final rule. Under the interim final rule, suppliers had to update material safety data 

sheets whenever the ACGIH or recognized international organizations like the 

International Agency for Research on Cancer updated their recommendations. 

Under the final rule, suppliers can now withhold that information from users. 

We’ve talked to chemical suppliers who think this change was brainless. They 

have no intention of writing different MSDSs for OSHA and MSHA jurisdictions. 

I have also talked to two tort lawyers who, when they stopped laughing, said how 

stupid this change really was. Imagine a case where a worker or consumer was 

harmed by product labeled under the MSHA rules. Suppose it became known that, 

not only had the supplier failed to disclose the latest information to the user, but 

had even lobbied the government for the right to cover it up. The liability would 

be enormous. For the good—not only of miners—but for the industry itself, Congress 

should reverse this absurdity. 

Again let me express our support for both the bills before you. The handful of 

changes we recommend are minor; we believe they could be made easily. 

Thank you again, Madam Chair for the opportunity to testify and for your efforts 

on behalf of miners and all working Americans. 

Chairwoman WOOLSEY. Thank you, Mr. Wright, and thank you 

for calling it back to our attention that we are talking about all 

mines and all miners. Thank you very much. 

I now recognize myself for 5 minutes for questions. 

Mr. Stricklin, thank you for being here and talking to us again 

about the technical assistance that we need in these bills. 

I understand that the concerns you raised in your statement this 

morning are virtually the same ones you discussed at a meeting 

that you were invited to with our staffs, and I mean, staffs, industry representatives, and meeting with the majority and the minority. I appreciate you for the time and your investment in that. 

But today’s testimony gives me an opportunity to say on behalf 

of our members that we need specific questions for improving this 

bill. We have them. We need them from you, because it is the obligation of my subcommittee to protect health and safety of the miners. I want everybody to know we are not going to get stalled along 

the way. 

So what we want to do is make it as convenient and easy as possible for you to join us in pressing forward on identifying what 

problems need to be addressed. So what I am asking you is can you 

and other experts from your department commit to some substantial time in the next week or two with our staffs on both sides of 

the aisle, and other interested parties, to work through these technical questions that you have identified? 

I also want to bring forward that we have heard about enforcement mechanisms that are just not being adhered to. They are 

being ignored. We need to bring that into the conversation also. 

Mr. STRICKLIN. We would be more than happy to do anything we 

could to meet with anybody willing to listen to us. 

34

Chairwoman WOOLSEY. All right. We will count on that. I think 

it is very, very important because we need you at the table, and 

we need those questions, and we need the discussion about it. 

So, Dr. Weeks, the United Kingdom, what have been the results 

of their lowering of the dust particles? 

Mr. WEEKS. In the U.K.? 

Chairwoman WOOLSEY. In the U.K. 

Mr. WEEKS. There are very few miners in the U.K. Most of the 

mines are shut down. They have had great success in reducing the 

incidence of CWP, and we have, too, in this country over the past 

several years. 

Chairwoman WOOLSEY. So do you think that miners should be 

obligated to undergo X-rays every few years? Upon hire, for one, so 

there is a base, and then to determine if they have lung diseases, 

and to follow, you know, their careers and if there are changes 

along the way? 

Mr. WEEKS. Right now, they are required to have a chest X-ray 

when they first start their work as miners. There is a follow-up 

film I think 2 years or so after that. After that time period, mine 

operators are required to offer the films to miners, but miners are 

not obligated to take them. Many do and many don’t. 

If the question that you are raising is should miners be required 

to take these films, the answer is clearly no, on my part, because 

it is used against them in employment. If a miner has a positive 

film for CWP, effectively he is blacklisted from employment in the 

mines. So until that problem is fixed, I would be reluctant to require them to take the films. 

Chairwoman WOOLSEY. So how would you fix that problem? 

Should not that information be confidential and locked away? 

Mr. WEEKS. It is required to be confidential now. It doesn’t always occur that way, that it is confidential. That part of the program is simply not very well-enforced. So there are breaches of confidentiality in terms of the results of miners’ chest X-ray films. I 

think it is due to lack of enforcement. Until that is fixed, miners 

should have control over the film themselves and they can do with 

it what they will. 

Chairwoman WOOLSEY. So, Mr. Wright, would you like to chime 

in on this? 

Mr. WRIGHT. I think there is a problem with requiring people to 

take medical exams under law. We do it for people whose jobs involve public safety, but it is not generally the practice to say that 

workers have to take medical exams for their own supposed protection. 

We have seen cases where—and this is not in coal mining, because we don’t represent people in coal mining in this country—but 

we have seen cases where an employer says to a worker, pre-hire, 

you have to turn over all your medical records. Now, that may or 

may not be legal, but in fact if you refuse to do it, you don’t get 

the job. 

So the current system puts miners and many other workers in 

a kind of a catch-22. If you take the exams, then get an adverse 

finding, your job prospects are probably finished. 

So unless we can solve that problem by saying people have a 

right to employment and that employers do not have a right to ask 

35

those questions, and that that is enforceable, we are going to put 

miners in a terrible situation. 

Chairwoman WOOLSEY. Right. Thank you very much. That was 

good information for me. 

Mr. Wilson? 

Mr. WILSON. Thank you, Madam Chairman. 

I would like to thank all four of you for being here today. 

But as the testimony proceeded, it was really clear to me there 

should be three parties here. You have the regulators. You have 

the representatives of the workers. But by not having the industry 

here, I think that is really wrong. The Mining Association has an 

excellent reputation of being strongly, obviously, in favor of health 

and safety of the people who work with them. 

Additionally, to make it worse, there were references to what 

their positions would be if they were here. That is just simply not 

right. 

So I hope in the future that we will have hearings where we 

have the regulator, the workers and the industry affected, particularly because I know the sincerity of the people here, but also the 

industry certainly cares about the people who work for them—their 

health and safety. 

As we proceed, Mr. Stricklin, your very thorough testimony discusses 16 provisions of the bill that you have technical concerns. 

Can you highlight those that you feel weaken the current MSHA 

safety and health standards, leaving the miners less protected? 

Can you also explain how the bill would impact the ability of the 

agency to write citations? 

Mr. STRICKLIN. A couple of the ones that we feel lessen is the 

multiple gas detector. The way that H.R. 2768 says if a person is 

going to work alone, he may have a detector with him. The way 

we enforce the regulations today, he will have a detector with him. 

It is the kind of wiggle room sometimes you get into when you use 

the word ‘‘may’’ in a regulation. It is tough to enforce. 

Secondly is the immediate notification part of the regulation. It 

basically gives a couple of different options—15 minutes and 1 

hour. Right now, every accident needs to be reported within 15 

minutes, so we feel if we go to the 15 minutes or the 1-hour component of the new reg that it lessens what is in place right now. 

Mr. WILSON. Additionally, the legislation bans the use of belt air. 

Can you present situations where belt air would improve safety? 

Does this legislation take into account the recommendations of the 

belt air technical safety study panel that was created by the 

MINER Act? Has the agency identified any instances where the 

use of belt air resulted in a coal mine fatality? 

Mr. STRICKLIN. I guess our position, based on trying to implement the MINER Act, I would prefer to wait until Dr. Weeks and 

his group have had an opportunity to finish their panel work. I 

think that is due at the end of this year. As far as a fatality occurring because of a belt fire, I don’t now of any. 

Mr. WILSON. Additionally, if a new type of belt were required, as 

suggested by H.R. 2768, would MSHA be required to deem it safe? 

There is a long history of increasing belt safety to include extensive 

debate over the appropriate testing of the subject, the belt. Can you 

36

provide an overview of this subject and explain how the bill would 

address this? 

Mr. STRICKLIN. All belts have a flammability rating to them, and 

there is a standard in the regulation. Anything that would change 

would have to go through our approval and certification center in 

Triadelphia, West Virginia. Basically, they evaluate it and they determine how quickly a belt would burn. Naturally, any test or any 

requirement in a new regulation would have to be tested by them 

to ensure that it met what Congress intended for it to have in the 

regulation. 

Mr. WILSON. And also under the provisions concerning inspections of the self-contained self-rescuers, how many units do you estimate would have to be tested annually? Wouldn’t this greatly reduce the number of SCSRs available to protect miners? 

Mr. STRICKLIN. We think when the MINER Act is fully implemented and all the purchase orders are put in place, that we are 

going to have approximately 200,000 self-rescuers in place in 

mines. This regulation discusses 5 percent every 6 months, which 

indicates in 1 year’s time 20,000 SCSRs will need to be tested. 

Mr. WILSON. Is there personnel for that? 

Mr. STRICKLIN. We don’t think we have the personnel to do that. 

I think another issue would be whether NIOSH has enough personnel, because as we get the SCSRs, we would have to give them 

to NIOSH. They would be the group of folks who would be testing 

these SCSRs. 

Mr. WILSON. Do miners themselves or the industry or others test 

the equipment? 

Mr. STRICKLIN. A mine operator, I guess, could possibly have an 

independent test. I think right now there are about 200 per year 

that are tested. So as we would increase to 20,000, that is naturally a large increase from 200 per year that we now see. So there 

would have to be a lot of gearing up for that. 

Mr. WILSON. Thank you very much. 

Mr. STRICKLIN. You are welcome. 

Chairwoman WOOLSEY. I would like to note that because the 

ranking member had to spend part of his testimony scolding the 

chairwoman, I gave him a little more time. [Laughter.] 

Mr. Bishop? Oh, sorry. 

Mr. Hare? 

Mr. HARE. Thank you, Madam Chair. I am a lot better looking 

than Mr. Bishop anyway. [Laughter.] 

I want to thank you all for coming. 

You know, I have to say to my friend from Minnesota when he 

talked about only 20 percent of miners are organized in the union, 

I hope a couple of things. One, I hope that increases significantly, 

and I am sure that it will. But I don’t think there is any miner 

from my perspective that doesn’t want to be able to go to work and 

have the feeling they can come home and see their family, whether 

they belong to a union or not. So I appreciate the fact that you are 

all here today. 

Mr. O’Dell, you are, I think, our resident expert on this because 

you were a miner. I don’t know if anybody on this committee has 

ever mined. I certainly haven’t. So I think you can speak with a 

37

great deal of experience for actually being down in the mines and 

to talk about some of this stuff. 

You know, we have heard a lot about the belt air. Why do you 

think the mine operators want to use the belt air to ventilate the 

mines? Have you ever seen a valid safety reason for doing that? 

Mr. O’DELL. If I may, I was a rank-and-file miner at the time 

the belt air petitions started coming about. I was also chairman of 

the safety committee at the Robins mine number 95 in Harrison 

County, West Virginia. The mine superintendent called me in and 

said, ‘‘Dennis, we are getting behind on the development of our sections, and the only way that we can continue to keep up with the 

development of our sections is to reduce the headings that we drive 

up.’’

At the time, we had some headings, some sections that were 

eight headings, and some that were six, and some that were four. 

They wanted to reduce down to a three-entry system, plain and 

simple, because of not being able to properly manage their mine. 

So they started filing for a petition for modifications for the use 

of belt air. You lose headings so you had to use the belt entry to 

get air up into the section to be able to ventilate properly. That is 

my personal experience and that is the truth of how this whole 

thing came about—mismanagement on the operators. 

As I said before in my testimony, I have researched NIOSH’s 

homepage and have not found anything about the use of belt air 

that has helped to improve miner health and safety. 

Mr. HARE. Okay. I appreciate that. 

Mr. Wright, I understand from your testimony that you, the 

steelworkers, believe that this legislation doesn’t go far enough. 

Some of our Republican colleagues and MSHA and the industry believe we have gone too far. 

From your perspective, can you explain why you believe we 

should in fact be doing more than we have been doing on this? 

Mr. WRIGHT. There were a couple of things that are in the SMINER Act that apply to coal mines that we think should be seriously considered for metal/nonmetal mines as well. One of those is 

we don’t like flammable belts either. Belts in metal/nonmetal generally don’t carry flammable materials like coal, but a belt fire can 

be a pretty miserable thing. You know, you have basically burning 

rubber and in an underground environment, if you want a confined 

space, that can be a serious problem. And we have had some belt 

fires. 

The other thing we think we need ultimately is self-contained 

self-rescuers. We agree that the need in coal is greater currently, 

but we shouldn’t forget that the biggest mine disaster in the past 

40 years was an underground fire in a metal/nonmetal mine in Kellogg, Idaho. The Sunshine Mine in 1972 killed 91 miners, all by 

carbon monoxide poisoning, and they all could have been saved 

with self-contained self-rescuers. 

It is ironic that it was that fire that helped not only create 

MSHA through the passage of the MSHA Act 5 years later, but 

also began to get self-contained self-rescuers into mines, but not 

into metal/nonmetal mines. A lot of the things we have done in 

metal/nonmetal make that kind of a fire less likely. But is it impossible? I don’t think so. Forty-five percent of mine fires are in metal/

38

nonmetal mines. So we would like to see self-contained self-rescuers there as well. 

Those are just two areas where we think that improvements can 

be made. There are other things that we think can be some finetuning in the bills, like always happens in the markup process. But 

we think on balance both bills are critically needed not just in coal 

mining, but in metal/nonmetal mining as well. 

Mr. HARE. I am almost out of time. 

Mr. Stricklin, just a quick question. In your professional opinion, 

why do you believe that black lung disease is on the rise again and 

being found in younger workers? What would you suggest that we 

do about it? 

Mr. STRICKLIN. That is a complex question. There are a lot of different components of it. It deals I think with production, the 

amount of production being mined; the extended hours of the employees. I do think we need to reevaluate the regulations that have 

been in place for over 35 years. 

As Dr. Weeks talked about, when they were implemented it was 

8-hour days for 5 days a week, and we have changed that all now, 

as well as the production. I think a lot of that has to do with what 

we are seeing as an increase in black lung. 

Chairwoman WOOLSEY. All right. If the gentleman would yield 

just a second to me, I would suggest that that would be a good 

written response question that we could use on this committee. 

Mr. Kline? 

Mr. KLINE. Thank you, Madam Chair. 

I thank all of the witnesses for being here. Despite our parliamentary discussions up here, we do welcome all of you. 

We are glad to have the union representatives here. I would just 

say again that I think we are missing a key stakeholder here and 

I wish that we had at least one representative of the National Mining Association, and apparently we ought to have the representation of the Industrial Minerals Association as well. 

There is an entirely new line of concerns that have been introduced today by Mr. Wright. I think Mr. Wright said the mine operators would have it otherwise, and of course we don’t know that because there is no representative of the mine operators here. 

Mr. O’Dell said that industry may try to argue, or you may hear 

today that this will affect small operators, or some say it would be 

a burden—but again, we don’t have any representative of the National Mining Association to respond to any of that. 

We really are trying to, I hope, come to the end of this process 

with good public policy that will enhance the safety of miners. We 

would just like to have all the stakeholders here. 

Mr. Stricklin, let’s see if we can get a couple of pieces of this because there is some new stuff that has come up. The S-MINER Act 

requires hardening of communication equipment. Your statement 

discusses how this would adversely impact the system. Can you explain a little more about what hardening means and how can that 

be an adverse effect? 

Mr. STRICKLIN. I guess we are concerned that if we accept a 

hardened system or a leaky feeder system, that we may keep technology from advancing to where the MINER Act has to be in 2009, 

and that was with wireless communication. We think we have a 

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shot at getting to wireless communication. We are afraid that if we 

accept less than that, that the technology will stop. 

Secondly——

Mr. KLINE. Excuse me. And therefore miners would be less safe? 

Mr. STRICKLIN. I have been underground in probably 10 to 15 explosion investigations. Quite frankly, after an explosion, there is 

not a whole lot left. I wouldn’t expect whether this is a hardened 

line or just a leaky feeder line, it is not going to be there after an 

explosion. So I think we need to all try to get to this wireless communication that the MINER Act in 2006 asked us to get to. 

Mr. KLINE. Okay. 

Mr. STRICKLIN. Secondly, it is my understanding that by hardening the leaky feeder, it takes away from the electronics of the 

system as well, which means the communication won’t be as good 

if you harden the line, rather than just letting the line lay freely 

in the entry. 

Mr. KLINE. Thank you. 

By the way, I should say to all of you who have worked down 

in mines, my hat is off to you. I took one trip down. That was more 

than sufficient. It is an amazing, amazing job. 

Let me see if we can explore another thing here, because again 

this was new in this legislation, so I am gain going to come back 

to you, Mr. Stricklin, because of my limited time. H.R. 2768 would 

consider having the Chemical Safety Board brought in for mine investigations. 

As I understand it, this body has no regulatory authority, legal 

standing, or in fact mining capability. Can you, in the time that we 

have left, explain MSHA’s investigation procedures and what impact it would have to have these additional parties brought into investigations? 

Mr. STRICKLIN. I think it makes it difficult. I guess we would like 

the ability, as we did if we go back to Sago. We dealt with a lightning issue. We are okay with bringing someone in if we need assistance. We are just concerned that if we have another government agency doing the investigation as well as us, number one, we 

don’t think they have the expertise in mining. 

Number two, we don’t think we have anything to hide. We are 

all career people. We do what we think is the right thing for the 

right reasons, and find the cause of the accident. 

Number three, we are concerned that if the Chemical Board does 

an investigation and finds things different than us, if we were to 

take action against a mine operator with civil or criminal penalty, 

if their report was different than ours, it would really taint probably what we could ultimately do. 

In addition, the Chemical Board wouldn’t have the authority to 

issue any violations to the cause of the accident. So that would be 

our major concerns with that. 

Mr. KLINE. Okay. I see the light is about to change. Thank you. 

I yield back, Madam Chair. 

Chairwoman WOOLSEY. Mr. Bishop? 

Mr. BISHOP. Thank you, Madam Chair. Thank you very much for 

holding this hearing. 

Mr. O’Dell, in your testimony you quote the chair of the Mine 

Safety Technology and Training Commission in which he sort of 

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lauds the notion of voluntary measures to improve safety, and suggests that legislation would stifle incentives to impose voluntary 

steps. 

I guess I am having a couple of problems with this. Number one, 

I would like to think that the law would constitute a pretty powerful incentive. I am just trying to understand. 

Perhaps, Mr. Stricklin, from your experience working with 

MSHA as long as you have, why is it that legislation would impose 

a restriction on good mine operators if the intent of the legislation 

is to make miners safer? And if good mine operators have that 

same goal, why would legislation be viewed as a disincentive to 

doing the right thing? 

I understand it is not your statement. I am just asking you from 

your perspective of working with this issue for a long time. 

Mr. STRICKLIN. When I look at mine operators, I don’t look at 

good operators or bad operators. They are all operators, and they 

all need to comply with the regulations. So I don’t see any difference in any operations when I look out at what I need to do. 

Mr. BISHOP. I guess the point I am searching for is that there 

seems to be the suggestion here that the way we ought to be approaching this is by encouraging voluntary means to improve mine 

safety, as opposed to legislative means. I am struggling to understand why legislative means would be less effective than voluntary 

means. 

Mr. STRICKLIN. I guess we at MSHA would like to see all the voluntary change being made on their own, naturally. That makes our 

job a whole lot easier. I would get a lot more comfort out of going 

in and shaking someone’s hand and saying they did it right, rather 

than having to issue violations. I don’t have any incentive to issue 

violations. If they are there, we issue them. 

I think regulations just back up what really should be done. If 

a mine operator is not doing it, then it gives us the ability to go 

in and take care of business if they haven’t done it on their own. 

Mr. BISHOP. Okay. Thank you. 

My other question is for Mr. O’Dell and Dr. Weeks and Mr. 

Wright. Mr. Stricklin’s testimony includes 16 areas where he believes our legislation is either deficient or in error or goes too far. 

My question to the three of you, and I know this is very broad: 

Are there any that jump off the page as particularly saying, you 

know what, he is absolutely right; we need to change the legislation? Or he is absolutely wrong and we need to set aside the objections that he has raised? 

Mr. O’DELL. If I may, I have not seen all 16 of those that they 

referred to yet. I mean, I heard him speak about a few of them 

today, but there is, let’s say for example, he speaks about the leaky 

feeder system. That is actually something that the industry was 

pushing. That is something that they would have liked to have 

seen take place. 

We are not saying that that is where we need to stop. We are 

saying that is better than what miners are afforded today. We 

agree with the agency. We still need to push forward because we 

also believe that the wireless technology is something that is 

achievable, but we need to do better today than what we have. 

41

I mean, we have telephone systems in the coal mines that aren’t 

much more than two tin cups with a piece of string behind them, 

virtually two mine phones with two pieces of wire hooked up with 

batteries, and that is about it. Just hardening the system would be 

a lot better than what we have today. By 2009, we are still optimistic than we can get the wireless systems in the mines as well. 

There are others that I think that we are all open to, but I think 

we need to do it. Rather than sit and wait, there are things out 

there today. He spoke about the borehole cases coming into sample 

behind seals. I was part of an investigation a few years ago, where 

lightning struck the casing of a borehole. We saw traces that lightning hit that case and traveled underground and exploded behind 

the seals. Luckily, they had seals put in place that stopped that 

from coming out to harm the men. They were bulkhead seals. 

The problem with that was had the operator cut that casing off 

before they can move forward, that may not have occurred. So 

there are ways to get around that, as well. So you know, I agree 

with Mr. Stricklin on some things. I disagree with him on others, 

but to actually speak on all 16 of those, I would have to look at 

them. I will be happy to answer that. 

Mr. BISHOP. Thank you. 

I see my time has expired. Thank you, Madam Chair. 

Chairwoman WOOLSEY. Mr. Price? 

Mr. PRICE. Thank you, Madam Chair. 

I want to apologize for not being here earlier for your statements. 

I had a conflict, but I understand that there were some interesting 

comments and actions that occurred. 

My previous life was as a physician. I took care of patients. One 

of the things I knew was that I needed all the information I could 

get my hands on in order to make a reasonable decision. So it disturbs me that apparently we have a panel that doesn’t include a 

significant stakeholder or stakeholders in an effort to try to get all 

the information so that we have what is necessary to make appropriate recommendations and decisions. 

Madam Chair, I think that is important. I sincerely think that 

is important. I think we ought to make certain that the next hearing that we have on this issue that we have all stakeholders 

present. 

Mr. O’Dell, you have just made a comment saying that the industry—I think you said the industry—I think you said wants a leaky 

feeder system. How do you know that? 

Mr. O’DELL. I serve as the chair on a UMWA BCOA Committee. 

It is a joint committee in which all operators sit in and we sit 

around and we discuss the improvements and what we can come 

to agreements on safety. 

Mr. PRICE. Shouldn’t we have the benefit of that information as 

well? Shouldn’t industry be sitting right here with us and sharing 

that with us? Wouldn’t that be appropriate? 

Mr. O’DELL. I can’t answer that. I am a guest. 

Mr. PRICE. This committee takes this work very, very seriously. 

Charlie Norwood, who was a dear colleague and friend, represented 

the 10th District in Georgia, he was passionate about this issue. He 

worked for years to try to improve laws as they relate to mine safety. 

42

There were a number of things that he worked one. One of the 

things he worked for years on was bringing about MSHA and the 

MINER Act that was signed into law in June 2006. I think it is 

important that people understand and appreciate what has gone on 

since that point. 

In June of 2006, the law was signed into place and MSHA implements new penalties for late accident notification. In September, 

MSHA publishes proposed rules for increased civil penalties. In October of 2006, MSHA implements new penalties for flagrant violations. In December, MSHA implements a final rule to strengthen 

mine evacuation practices. 

In February of this year, MSHA issues a bulletin requiring 

breathable air for trapped miners. In March of this year, MSHA 

implements new penalties or safety and health violations. In May 

of this year, they published the emergency temporary standard on 

explosion in abandoned areas. 

They have moved in the following directions requiring all coal 

mines to submit to MSHA their emergency response plans, and all 

were submitted, requiring more self-contained self-rescuer devices 

for each miner in every underground coal mine—something that I 

know was said was a priority, that has indeed been required and 

implemented as of December of last year—there is a backlog, obviously, in the industry, but it is a requirement, requiring fire-resistant evacuation lifelines in all underground coal mines within 3 

years as specified by the MINER Act; mandating additional safety 

training in the use of self-contained self-rescuers in all underground coal mines. 

There is a lot of work that has been done, a lot of good work that 

has been done. The list goes on and on. So I guess I would ask anybody, what additional steps have members taken in the mining industry to improve safety, other than the ones that I have mentioned, the ones that you know about, what additional steps have 

occurred? 

Mr. Wright? 

Mr. WRIGHT. I want to make sure that I understand the question. Is it what additional steps should be taken or what additional 

steps——

Mr. PRICE. What additional steps have been taken? 

Mr. WRIGHT. Have been taken. Well, in metal/nonmetal industry, 

not very much. We are still very concerned about some of the 

health risks in that industry. 

Mr. PRICE. I need to reclaim my time for a minute. I need to reclaim my time because I am on yellow. I appreciate that. I appreciate you saying ‘‘not very much.’’ But wouldn’t it be nice if I could 

turn to the industry and say, what else have you done? It is I think 

a travesty, this process that we are going through right now, that 

we don’t have that kind of representation sitting at this table. 

That is not your fault, but this is the only opportunity that we 

have to officially state that we believe this is a flawed process, and 

a flawed process—just as a flawed process in the diagnosis of a patient—can’t get to the right treatment. 

I yield back the balance of my time. 

Chairwoman WOOLSEY. Mr. Payne? 

Mr. PAYNE. Thank you very much. 

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You know, you read off a whole litany of things that have been 

done, but we still had 24 miners dead. So perhaps we even have 

much further to go since with all of those things that were just 

read, you would think there would be no deaths. I don’t know 

whether the fact that it is only 24 makes that list impressive. It 

is not impressive to me. If things can still be done, they ought to 

be done. 

We have heard from mine owners. We had a bunch of them here, 

or at least they were sitting in the audience, and I think they testified at a full committee hearing twice. So it is not that we haven’t 

heard from mine owners. We hear from them all the time. 

Mr. PRICE. Will the gentleman yield? 

Mr. PAYNE. Absolutely. 

Mr. PRICE. I may be mistaken, but I don’t think that we have 

heard from the industry on these bills. And I suspect you would 

agree that when comment is made about the industry, that they 

ought to be able to respond. 

Mr. PAYNE. Reclaiming my time, you are wrong. We have had 

the industry here and they have had an opportunity to respond. 

They have been here dealing with the mine safety, mines in general. They certainly didn’t come here to talk about airplanes. So 

you know, they talk about mines. 

Let me just ask a couple of questions. Mr. O’Dell, you understand 

that the inspector general has objected to a provision in the legislation establishing the Office of Ombudsman. Why do you feel that 

this provision is necessary? Or why do you feel that the inspector 

general opposes it? 

Mr. O’DELL. If I may, sir, mining is a whole different world. I can 

tell you as a coal miner, and that is what I consider myself—a coal 

miner. When you are underground, it is a whole different world. In 

many mines which I worked in, we have more of a voice than some 

of those that work at non-represented mines, non-union mines. 

There is an intimidation factor. Miners need somebody that they 

can go to in the event that they need to seek help or talk to someone. 

The codeaphone that is put in place today has failed. It has failed 

drastically. This is no surprise to anybody. We have had miners 

who have used codeaphone whose identities have been revealed. 

We have had complaints called in that have not been acted upon 

in a timely manner. I am not telling you something that I have not 

talked to the agency about personally, because I have. 

I am not saying that they haven’t tried to do things to improve 

because they have also done things to try to improve it as well. But 

I am saying the system that we have today is broken and it doesn’t 

work, and this just seems like a good fix for all miners to be able 

to have an access to where they would have the confidence of somebody they could go to to help fix those problems. 

Mr. PAYNE. Thank you very much. 

Also, Dr. Weeks, you mentioned the two main areas that you 

would like to see proposed, and wished to speak to these: first, the 

revision of the dust standard from 2.0 to 1.0 for a 10-hour shift; 

and the personal dust monitor. I just have a question regarding the 

level of dust. 

44

Is there any way—one of you, Mr. Wright or anyone that would 

like to answer it—is there any way that the dust levels can be reduced in the mines? Or is it just, you know, you are in the mines; 

you deal with dust, and there is no way to get around it. I mean, 

is there circulation or the possibility of that? 

Mr. WEEKS. Yes. Dust can definitely be reduced. The methods for 

controlling dust in underground coal mines are very well-developed. 

It involves a combination of how you cut the coal, ventilation, work 

practices and use of water sprays. The dust control in metal/

nonmetal mines is a different creature because the whole process 

is different. Individual processes can be controlled, for example 

drills and crushing machines and so on that Mike Wright would be 

better able to speak to. 

But it is the existence of these controls in coal mining that 

makes it possible to do better in terms of reducing dust exposure 

and preventing black lung. We need to make certain that they do 

get reduced. 

Mike, do you want to speak to that? 

Mr. WRIGHT. Yes. Actually, the basics in an underground metal/

nonmetal mine are not a lot different. It is basically ventilation and 

using water sprays on the drills. In the old days, they used to be 

jackleg drills which an individual miner would operate. These days, 

they tend to be jumbo drills which is basically a piece of mobile 

equipment. 

Mines also include just a wide net, so mines also include surface 

operations. We get pretty dusty conditions, for example, in some of 

the iron mines, the taconite mines and the surface operations 

where you are basically crushing the rock matrix. Unless you have 

good ventilation systems, unless you have wet-working in those 

systems, then those operations can be fairly dusty as well. 

But the control is pretty well-understood, and a lot of operators 

do it fairly well. Some don’t. The problem with voluntary measures 

is that not everybody volunteers. 

Mr. WEEKS. If I could add something to that, I just recently completed a review of dust exposure in metal/nonmetal mines. The exposure to silica in surface and underground mines is essentially the 

same. You get very high levels of exposure. 

One of the things that is missing on surface mines is that there 

is no X-ray surveillance program at all for miners in the metal and 

nonmetal sector. My concern is that we may have a large number 

of cases of silicosis among surface miners that we simply don’t 

know anything about. They show up in a variety of ways. 

The whole program for preventing black lung in the coal mining 

industry does not exist for miners in the metal/nonmetal industry, 

and it should, in my opinion. 

Mr. PAYNE. [Off-mike] getting ready to do it. They found everything that industry wants there. I just wonder if at a place in Africa where there is a lot of [off-mike], is there any international organization that attempts to—if we have these problems here in the 

United States, I don’t know what they are going to have in Mongolia. 

I mean, is there any national or international group that might 

be trying to promote, even from our administration, anyone to try 

to educate miners in other countries? 

45

Mr. WEEKS. Yes, there are two groups that come to mind immediately. One is the International Labor Organization which sets 

standards for chest X-ray films for conducting surveillance for 

pneumoconiosis that would apply both to black lung and to silicosis. They are actively involved in disseminating information to 

basically everybody that they can get to. 

There is another group, the International Standards Organization, that has set standards for defining what respirable dust is. 

That is a very fine point and a technicality, but it actually turns 

out to be important. One of the things that the NIOSH criteria document does in recommending the lower exposure limit is adopt the 

ISO definition of what a respirable dust is. 

And there are a number of other international organizations that 

are active in this area as well. 

Mr. WRIGHT. There is also a group called the International Federation of Chemical Energy, Mine and General Workers. That is an 

international labor body. It basically represents unions in those 

trades around the world, including mining unions. We actually 

have a fairly active program of working with that organization and 

working with miners in several different countries. 

I visited mines in Russia and in Poland, and members of my staff 

have visited mines in Kazakhstan, Sweden, Germany and a couple 

of other places. We have both been able to teach some of the techniques we use in the U.S. and we have been able to learn as well 

from really all those countries. So that kind of exchange is going 

on. 

Mr. PAYNE. Thank you very much. 

Yes, just to mention that there have been a number of letters in 

regard to this question about the mine owners not having an opportunity to have their points of view made. We have a copy of four 

letters from the different ones, the National Mine Association, the 

Iron Miners Association, the Industrial Minerals Association, the 

Detroit Salt Company. 

So I just want to let the other side know that the mine owners 

have not been shy, nor have they not known what is going on because they have certainly sent information to the committee on 

their point of view. 

Chairwoman WOOLSEY. Would the gentleman like those included 

in the record? 

Mr. PAYNE. I would appreciate it if they would be included in the 

record. 

Chairwoman WOOLSEY. Without objection. 

[The information follows:]

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Chairwoman WOOLSEY. Now, for the closing remarks of Ranking 

Member Wilson. 

Mr. WILSON. Thank you, Madam Chairman. 

Indeed I appreciate, as the co-chair of the Mongolia Caucus, I unfortunately was not able to accompany Congressman Payne, but I 

know he did a great job in Ulan Bator. Also, I want to note that 

you gave very good information on HADA to promote health and 

safety as they develop their industry. I am very pleased that it is 

a joint South Carolina-California corporation, Fluor Corporation, 

which will be also providing expertise. 

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time to consider the issues in a committee meeting. I am always 

happy to be with this group. I would like to point out that particularly the offer to Mr. Stricklin, where you indicated in a very positive way, I thought, to go over the 16 provisions that he has concern about, that it might be very helpful to have a further hearing. 

Additionally, indeed I think it is very helpful to have someone 

here from the United Mine Workers. They were here at the prior 

hearing, and now they are here at this hearing after the bills have 

been introduced. But indeed, we have not heard from the Mining 

Association since the bills have been introduced. 

And I am going to be moving to include by unanimous consent 

certain statements and letters for the record, but I would point out 

that it is just so much more helpful when we can, as has been done 

today, very constructively ask questions. I think we have all 

learned in a very positive manner on different issues, but it is so 

much better that indeed we can ask questions and not just read 

some of the tomes that might be presented to us. 

So at this time, I would like to move unanimous consent for the 

statements from the National Mining Association, the International 

Minerals Association of North America, which may have already 

been included in the motion by Congressman Payne, and letters 

from the International Minerals Association of North America, the 

National Lime Association, the National Stone, Sand and Gravel 

Association, the Portland Cement Association, and the Salt Institute. 

Chairwoman WOOLSEY. Without objection. 

[The information follows:]

Prepared Statement of the National Mining Association 

The National Mining Association (NMA) appreciates the opportunity to share our 

views on legislation that has been introduced to amend our nation’s mine safety 

laws and the measure that was unanimously adopted by the Senate and overwhelming adopted by the House last year, the Mine Improvement and New Emergency Response Act of 2006 (MINER Act). 

NMA, as you know, worked toward the passage of the MINER Act and we continue to believe that its core requirements are sound. The MINER Act, which was 

endorsed by labor and industry prior to its passage little more than one year ago, 

has already contributed to significant success in improving safety. But much remains to be accomplished by both the Mine Safety and Health Administration 

(MSHA) and the industry to achieve full implementation. 

Since the MINER Act was signed into law on June 15, 2006, MSHA has taken 

aggressive action to implement its provisions. Industry has invested more than $250 

million thus far complying with the act’s mandates. Most importantly, mining operations are on track to return to year-over-year improvements in mining safety. (See 

below for a list of MINER Act accomplishments to date.) 

We believe that diverting attention and resources away from the critical task of 

fulfilling the mandates of the MINER Act because of the necessity to respond to an 

additional layer of statutory requirements could ultimately undermine the progress 

that has been made on miner training and other vital objectives of the act. To impose further legislation before the full impact of the original MINER Act can be 

comprehensively measured is premature. Consequently we urge that Congress defer 

consideration of these measures until all parties’—labor, industry, regulators and 

members of Congress—can fairly and independently analyze the MINER Act’s impact. 

NMA also notes a similar caution shared by prominent mine engineering academics in their July 25, 2007 letter to the chairman and the ranking member of 

the House Committee on Education and Labor. The 11 academics from leading 

schools of mine engineering warned against ‘‘dramatically disrupting the very core 

of the industry’’ with additional provisions at this time. 

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Accompanying our statement is a critique of a number of provisions of the new 

legislation that we believe are unnecessary and possibly even counterproductive to 

our shared mission of improving mining safety. This statement highlights what we 

believe are some of the major flaws of the bills introduced as well as what is missing 

from the discussion. 

I. The addition of new regulatory requirements will create confusion and threaten 

continued progress on implementing the safety improvements required by the 

MINER Act. 

The S-MINER Act would create new requirements in these already difficult and 

challenging technology-forcing areas. For example, the bill would shorten deadlines 

by requiring that hardened ‘‘leaky feeder’’ electronic communications and tracking 

systems be installed in all underground coal mines within 120 days from the date 

of enactment. These premature changes threaten the real progress being made. If 

implemented, these new requirements may lead to the installation of ineffective 

technology. They also have the potential to strand significant dollars already invested by companies in safety improvements. 

II. The S-MINER Act circumvents notice and comment rulemaking, thereby preventing the development of sound safety and health standards and policies. 

Notice and comment rulemaking is a precept fundamental to the MINER Act and 

its predecessor statutes. The basic purpose of such rulemaking is to afford stakeholders the due process required by law by providing a reasoned forum that allows 

all interested parties to comment on proposed regulations. The process is designed 

to help governmental agencies such as MSHA collect the best available information 

so that the final regulations implemented are effective and fair. The S-MINER Act, 

and its related Miner Health Enhancement Act of 2007 (H.R. 2769), would circumvent this crucial rulemaking process in key areas. 

III. The S-MINER Act changes the roles and responsibilities of MSHA and NIOSH 

in a number of key respects. It also introduces into the safety process organizations 

unfamiliar with the mining industry. 

The S-MINER Act would radically change a number of key MSHA and NIOSH 

responsibilities. In our opinion, this will create regulatory confusion. 

The bill would turn this well-understood and effective standard-setting regime on 

its head by mandating that MSHA simply accept NIOSH recommendations. This 

would circumvent the current approval and certification process and would also undermine established protocols to ensure that products used in mines are safe. 

The bill also contains a provision requiring MSHA to contract with the Chemical 

Safety and Hazard Investigation Board to conduct ‘‘special investigations’’ of mine 

accidents. While the Board is knowledgeable and respected, it is unfamiliar with 

mining. We question whether the Board would have the technical knowledge capable of analyzing the complex hazards that are unique to this Industry. 

IV. The S-MINER Act will result in an administrative nightmare for MSHA and 

the industry. 

The S-MINER Act contains several provisions that are impractical. For example, 

it requires operators of all mines, both underground and surface, coal and metal/

nonmetal, to notify the agency when every violation is abated. This would create 

an unnecessary burden for mine operators, especially since inspectors are at the 

mine virtually every day. An effective system to abate violations is already in place. 

Additionally, it would require all operators to notify MSHA of a number of incidents 

that are not likely to cause injury or are otherwise not life-threatening. Notifying 

the agency of near miss incidents or other events that are not clearly defined by 

the bill will lead to confusion, i.e., ‘‘any other emergency or incident that needs to 

be examined to determine if mines are safe * * *’’

The bill would also require MSHA to randomly select and remove for testing five 

percent of the SCSR units at all underground coal mines every six months. This provision is ill-conceived. By removing from service SCSR units that are needed by 

working coal miners, it will exacerbate the existing shortage. Recognizing that the 

inspection system used in the past was flawed, MSHA recently introduced new quality control procedures to inventory and monitor SCSR units. These new procedures 

address the flaws and make these legislative requirements unnecessary. 

V. The S-MINER Act outlaws the use of belt air to ventilate the face at underground mines. As a result, it would severely diminish safety by prohibiting the use 

of a procedure critical to the safe operation of a number of underground mines. 

Belt air is critical to the development of underground coal mines in areas of significant overburden. In such deep mines, reducing the number of entries is an important precaution against the likelihood of dangerous roof falls and similar types 

of ground control events. This precaution, however, places a premium on the use 

of belt air for ventilating deep mines. It is also critical to ensure that a sufficient 

amount of air is available to dilute gas and dust. 

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The MINER Act required MSHA to establish a Technical Study Panel to evaluate 

the use of belt air and belt flammability standards. The panel is in the final stages 

of its evaluation, and is on track to deliver its report to the Secretary of Labor by 

the end of the year, well within the date mandated by the MINER Act. The congressionally mandated panel should be permitted to complete its work and additional 

requirements related to the use of belt air should not be issued until the panel’s 

report and recommendations are finalized. 

VI. The additional penalty provisions included in the S-MINER Act are draconian, 

unnecessary and unfair. 

The S-MINER Act would increase penalties, establish new requirements for ‘‘pattern of violations,’’ and restrict the ability of mine operators to contest inappropriate 

enforcement actions. These stricter enforcement provisions, which would apply to all 

mines, are unnecessary and will not contribute to improved health and safety. 

Contrary to the picture painted by the S-MINER Act, injury trends continue to 

improve. For example, within the coal industry the Total Reportable Incident rate 

over the past 10 years has improved by 45 percent (7.90 to 4.37). 

VII. The S-MINER Act’s one-size-fits-all approach fails to recognize that mines are 

unique. If enacted, this bill will result in many mines installing inappropriate or unnecessary technology. 

The S-MINER Act is prescriptive, as opposed to being risk-based, in design. It 

would mandate the use of technologies that may not be appropriate for all underground mines. Mine operators should not be required to introduce technology that 

is neither proven to be safe nor yet commercially available. 

The independent Technology and Training Commission, whose work is referenced 

in the summary documents that accompanied introduction of S-MINER Act, identified ‘‘systematic and comprehensive risk management as the foundation from which 

all life-safety efforts emanate.’’ The prescriptive nature of the bill ignores this independent recommendation and would confine MSHA and the industry to continuation 

of a one-size-fits-all approach. 

VIII. The Missing Pieces. 

Just as the S-MINER Act is burdened by the addition of premature requirements, 

it is weakened by the absence of provisions that could make significant contributions to mine safety. 

Substance Abuse Testing 

Neither the supplemental MINER Act nor the Miner Health Enhancement Act 

deal with the problem of substance abuse in our nation’s mines. This glaring omission must be addressed if we are truly concerned about improving safety. While 

some companies, depending upon the jurisdiction within which they operate, can implement random drug and alcohol testing, this cannot be applied universally. Unfortunately, the absence of mandatory, random drug and alcohol testing creates an unacceptably permissive environment in which impaired individuals are free to endanger co-workers at facilities where random testing is prohibited by jurisdictional or 

company policy. This practice cannot be permitted to continue. 

All miners deserve to know that they are working in an environment where they 

need not concern themselves with safety consequences arising from another employee being impaired due to substance abuse. Last year we promoted, during consideration of the MINER Act, inclusion of language providing authority for mandatory, random drug testing throughout the industry. Unfortunately, this sensible precaution was opposed by some in the Senate and was not included in the bill that 

came before the House. 

Recognition of this problem is long-overdue and we ask that if a bill emerges from 

this Committee it include authority for operators to institute mandatory, random 

drug and alcohol testing programs to safeguard their employees. 

Mandatory Health Surveillance 

Section 7 of the S-MINER Act addresses what some believe is necessary to bring 

about further reductions in the percentage of coal miners developing coal workers 

pneumoconiosis (CWP) or black lung disease. We, like you, support efforts to eradicate CWP but believe the objective of the bill’s authors will never be achieved so 

long as the x-ray surveillance program under Section 203(a) of the act remains voluntary. 

Recently, the National Institute of Occupational Safety and Health (NIOSH) reported on cases characterized as ‘‘rapid progression’’ CWP. The results of the 

NIOSH study are of concern to all of us and while we need to better understand 

the scientific basis for these determinations, one fact is glaringly obvious—participation in a mandatory x-ray surveillance program might have prevented progression 

of the disease in some of these cases. 

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Since its inception, 30-40 percent of those eligible to participate in the NIOSH 

surveillance program have voluntarily elected to do so. Just as operators must do 

a better job ensuring that dust controls are in place and are maintained, so too must 

we recognize the role of surveillance in an overall prevention strategy. 

Eliminating black lung will not occur so long as the x-ray surveillance program 

remains voluntary. If a bill emerges from this committee it must make participation 

in the program mandatory. 

Inspection Activity & Resource Allocation Decisions 

Under the Mine Act, MSHA is required to inspect every underground mine four 

times per year and every surface mine twice per year. Contrary to congressional expectations, these inspections do not consist of semi-annual or quarterly visits of a 

few days’ duration. Rather, they can, and oftentimes do, mean a continual presence 

at the mine throughout the year. MSHA’s statistics show that a large underground 

coal mine can have as many as 3,000-4,000 on-site inspection hours a year. 

Moreover, in addition the agency also conducts thousands of what it calls ‘‘spot’’ 

inspections aimed at measuring compliance with standards governing specific conditions or practices. 

Under MSHA’s regulations mine operators must report immediately all accidents 

and report on a quarterly basis all lost time injuries and reportable illnesses directly 

to the agency. This has resulted in the developed of an extraordinary database that 

ought to be used to guide inspection activity and allocate inspection resources. It 

is far more likely that inspection activity based on documented need and analysis 

ill be more effective than inspection decisions based on entirely subjective or ambiguous criteria or on rote compliance with mandates of the Act. MSHA must be authorized to utilize the information available, all of which it compiles and maintains, 

to identify problem areas and allocate its inspectorate accordingly. 

Working together we believe a system can and must be developed that would establish a mechanism to reduce the number and scope of inspections based on performance and the adoption of verified and objectively administered performance 

goals. 

Conclusion 

Today mine safety and health professionals face challenges far different from 

those anticipated when our nation’s mine safety laws were first enacted. Difficult 

geological conditions, faster mining cycles and changes in the way work is conducted 

introduce potential complications whose solution requires new and innovative responses. Today’s challenge is to analyze why accidents are occurring at a mine, then 

use that analysis as a basis for designing programs or techniques to manage the 

accident-promoting condition or cause. 

Regrettably, the bills before the committee will not accomplish our shared goal. 

Rather, their intention is to try to force improvement through the imposition of punitive measures that bear little understanding of the complexities of today’s mining 

environment. Eliminating stakeholder participation in the regulatory process will 

not improve safety, applying one-size-fits all requirements will not improve safety 

nor will imposing artificial deadlines that ignore the need to develop technology and 

assure its safe use. 

We stand ready to work with the members of the committee to analyze what further statutory amendments are warranted once operators have been afforded the opportunity to fully implement the requirements of the MINER Act. To do otherwise 

is premature, unnecessary and unwarranted. 

MINER Act Accomplishments 

The following is a list of industry accomplishments achieved to date under the 

MINER Act and voluntarily: • 86,000 new self-contained self-rescuers (SCSR) have been placed into service in 

the last 12 months and more than 100,000 will be added in the coming months. • All 55,000 underground coal miners have and will continue to receive quarterly 

training on the donning and use of SCSRs. • With the recent approval of expectation training units, all miners will begin to 

receive annual training with units that imitate the resistance and heat generation 

of actual models. • Mines have installed lifelines in both their primary and secondary escape-ways 

and emergency tethers have been provided to permit escaping miners to link together. 

• Underground coal mines have implemented systems to track miners while underground; underground coal mines have also installed redundant communication 

systems, and new systems to provide post-accident communication continue to be 

tested. 

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• All 550 underground coal mines have submitted plans to provide post-accident 

breathable air to sustain miners that are unable to escape and await rescue. 

• Thirty-six new mine rescue teams have been added or are in the planning 

stages, even before MSHA initiates the rulemaking required by the act. 

• These steps and others taken beyond the requirements of the MINER Act have 

resulted in a safety investment of approximately $250 million for NMA member 

companies alone. 

• Even before the enactment of the MINER Act, NMA and its members engaged 

the National Institute for Occupational Safety and Health (NIOSH) and Mine Safety 

and Health Administration (MSHA) in a mine emergency communications partnership. 

• NMA members have volunteered their mines for testing tracking and communications systems. Some of these technologies hold great promise; however they are 

some years away from readiness for mine application. 


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Mr. WILSON. At this time, I again appreciate having the hearing 

today. I think we have all learned a lot. I hope we have another 

hearing prior to going to markup. 

Chairwoman WOOLSEY. I want to thank our distinguished panel 

of witnesses for testifying here today on the technical aspects of 

H.R. 2768 and H.R. 2769. The legislation before us today will ensure that the provisions of the MINER Act work and will also add 

additional safeguards for miners. 

Sadly, the accidents at Sago and Aracoma, Alma and Darby 

could have been prevented; 19 miners could have been saved. As 

I stated at the beginning of the hearing, we will continue to work 

with all interested parties to make sure that these bills are the 


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best, the very best that they can be. But delay for delay’s sake is 

absolutely unacceptable, especially when miners’ health and safety 

is at stake. 

I thank you again for coming. 

As previously ordered, members have 14 days to submit additional materials for the hearing record. Any members who wish to 

submit follow-up questions in writing to the witnesses should coordinate with majority staff within 14 days. 

Without objection, the hearing is adjourned. 

[Supplemental materials submitted for the record by Ms. Woolsey follow:]

AMERICAN SOCIETY OF SAFETY ENGINEERS, 

1800 EAST OAKTON STREET, 

Des Plaines, IL, September 19, 2007. 

Hon. GEORGE MILLER, Chairman, 

Committee on Education and Labor, U.S. House of Representatives, 2181 Rayburn 

House Office Building, Washington, DC. 

RE: ASSE Comments on Mining Safety Reform Legislation (HR 2768 and HR 2769)

DEAR CHAIRMAN MILLER: On behalf of the 32,000 member safety, health and environmental (SH&E) professionals of the American Society of Safety Engineers 

(ASSE), we respectfully ask that you and the members of the Committee on Education and Labor consider the following comments on the two legislative initiatives 

aimed at improving mine safety currently pending before the Committee—the Supplemental Mine Improvement and New Emergency Response Act of 2007 (SMINER) (H.R. 2768) and the Miner Health Enhancement Act of 2007 (H.R. 2769). 

Our comments reflect directly the experience and expertise of leading safety professionals in the mine industry who are members of ASSE’s Mine Practice Specialty. 

The Mine Practice Specialty is one of thirteen practice specialties organized to help 

advance common principles of safety, health and environmental management to protect workers in all workplaces. Like all Americans, our member mine safety professionals are deeply troubled by any death in a mine. They go to work each day to 

do all they can to prevent these tragedies. Like you and the Committee members, 

they want to make sure all that can be done to prevent the loss of life and injuries 

in this nation’s mines is accomplished. 

Needed: An Overall Mine Industry Risk Analysis 

Most of what is proposed in HR 2768 and HR 2769 will help prevent loss of life 

and injuries. Some provisions are not realistic given the current capabilities of the 

Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) and may take away from the ability of these 

agencies to advance safety in realistic ways. A few provisions, though not directly 

safety issues, challenge the due process rights of mine owners and may be unnecessarily overbearing for the great majority of mines that work safely. In that regard, 

it is also important to note that most mines are small businesses. Applying MSHA’s 

definition for a small mine (fewer than 20 workers), about 56 percent were small 

mines in 2002. Using the Small Business Administration’s definition (fewer than 

500 employees), 95.5 percent of mines are considered small businesses. 

Our member mine safety professionals strongly believe, however, that this legislation—as does the overall mine safety debate—misses a necessary approach to 

achieving safer mines. As our members see it, each time a mine disaster occurs, another serious mine safety problem comes to light that turns out to have been a 

known significant risk within the mining community. For example, underlying the 

specific failures that led to the Sago disaster was the industry’s quick rush to opening long-closed mines due to the improving market for coal. In the most recent tragedy at Crandall Canyon, the mine’s catastrophic failure may well have been impacted by flaws in the mining and roof control plans. When companies engage in 

such a meticulous process as retreat mining, it becomes critical to have mine plans 

examined and reviewed by experts with the requisite knowledge and experience to 

detect potential concerns. This may prove to be more an issue of inadequate support 

services and oversight than regulatory inspections. 

This nation’s mines are already the most regulated workplaces in America. When 

it is estimated that OSHA would need about 24 years to inspect every general industry and construction workplace in America once, MSHA inspects each mine in 

this nation multiple times each year. No doubt, specific improvements in inspecVerDate 0ct 09 2002 14:58 Apr 06, 2008 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-59\36731.TXT HBUD1 PsN: DICK
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tions, enforcement and an emphasis on improved technology and rescue capabilities 

are needed. We urge the Committee, however, also to look beyond specific fixes to 

establishing an overall approach to assessing safety and health risks across the mining industry that would be similar to the way a safety professional approaches a 

troubled worksite. 

When a safety professional enters a worksite, professional training dictates that 

the first task is to look throughout the workplace and make an assessment of the 

overall safety and health risks. By developing risk-based priorities, he is able to 

make the most effective use of his resources to address the issues that most directly 

put workers in peril. Focusing too soon on specific risks could easily overwhelm the 

crucial need for an overall understanding of the relative risks workers face. Once 

an overall assessment is accomplished, the safety professional will address each risk 

in the order of their relative danger to workers, with the resources available to address each risk in mind. 

ASSE believes that, at this time especially, the same kind of overall safety analysis is needed for the mine industry as a whole. We urge this Committee, through 

an amendment to this legislation, to task NIOSH to convene a stakeholder symposium with the specific goal of conducting a mine safety risk analysis for the mine 

industry that would identify the most dangerous risks and establish a hierarchal 

ranking of the severity of those risks so that the focus of mine owners, the resources 

of MSHA and NIOSH, and the actions of Congress can be targeted to the most dangerous risks first. Such an analysis would create the foundation for what safety and 

health professionals would hope could be the establishment of a risk-based approach 

to improving those key issues that have proven over the past twenty months to expose underground miners to the greatest peril. 

From our members’ viewpoint, the majority of workplaces that fall under the authority of the Mine Safety and Health act of 1977 (Mine Act) share a risk profile 

that has more in common with heavy highway construction than with underground 

mining. They know that sand pits, quarries and other surface mining activities have 

maintained accident rates far lower than manufacturing and construction for several years. An industry-wide safety analysis could very well result in an understanding for the need for Congress to re-open the Mine Act to readjust the direction 

and scope of mine regulation so that the resources of MSHA especially could focus 

more directly on the elements of the industry and the risks that truly represent a 

clear and present danger to miners. Further emphasis on the broad scope of mining 

without consideration of these risks restricts MSHA from properly allocating and directing resources to the areas where they can do the most good. 

This suggestion represents sound loss-prevention theory practiced by safety and 

health professionals in every kind of workplace, especially one troubled by injuries 

or loss of life. Given the repetitive tragedies that the mine industry has faced recently, the same overall approach is needed. ASSE and its members stand ready to 

help this Committee develop this kind of strategy. 

Comments on S-MINER Act (HR 2768) 

Supplementing Emergency Response Plans 

ASSE greatly understand the urgency with which the provisions aimed at improving the chance that miners will survive a mine accident have been included in this 

bill. Each provision is worthy of further action, as each has the potential to save 

lives. Reiterating our previous comments, however, we urge you to amend the bill 

to make their implementation dependent on an industry-wide risk analysis to be 

conducted under the direction of NIOSH before placing these provisions into law. 

Our fear is that all these activities, if required in the time frames indicated, will 

overwhelm even the best efforts of NIOSH and MSHA to bring them about. 

Provisions included in this section requiring the establishment of an advisory 

committee to determine applicability of regulations to underground metal and 

nonmetal mines are consistent with ASSE’s proposal. We hope that Congress will 

ensure that NIOSH plays a key role in this evaluation since it is best situated to 

understand the many distinctions between the coal and metal/nonmetal underground operations that led MSHA to create different sets of standards for these 

commodities in the first place—non-combustible ore and dusts, fewer gassy mine 

issues, natural ventilation in some mines, and differences in mining methods, for 

example. 

Clearly, some provisions included in the section Supplementing Emergency Response Plans are needed immediately, like ensuring that mines have post-accident 

communication systems meeting the most effective systems currently used, ensuring 

safety communications among personnel between mine shifts, and requiring 6-

month self-rescue device inspections and notification. For other provisions, NIOSH 

and MSHA will find it difficult to balance the desire to meet the directions given 

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here with the realities of technology and their resources. For example, while it is 

laudable that the bill tasks the National Academy of Sciences with a study of lightening in mining, it is doubtful that mine inspectors or mine owners will be able to 

carry out the bill’s provisions aimed at protecting miners. Each mine will have 

unique vulnerabilities to lightening, most of which we fear will be undiscoverable 

even under the best intentions. As safety professionals, our members are consistent 

in their dedication to using whatever knowledge and technologies are available to 

protect miners. But they do understand the frustration of being tasked to address 

relatively small risks when more pressing, even immediate risks need to be fixed. 

Technology and mine emergency health and safety research priorities—ASSE cautions against an effort by Congress to set research agendas without the willingness 

to fund additional research beyond what NIOSH is already undertaking. Each technology the bill would require NIOSH to give due consideration does deserve more 

research. However, NIOSH has already undertaken what we believe is a highly 

competent review of its research priorities in mining through the National Occupational Research Agenda (NORA). Under NORA, a Mining Sector Council is already 

undertaking the kind of research analysis needed to set priorities. Congressional action should not detract from that effort. 

Supplementing Enforcement Authority 

Authority of inspectors—ASSE supports provisions that clarify the authority of 

MSHA and its personnel to direct rescue and recovery activities. In any rescue and 

recovery operation, a clear authority to take responsibility is always needed. 

Transition to a new generation of inspectors—ASSE commends Congress for addressing the loss of experienced mine inspectors. The mine safety community shares 

this concern, as MSHA is projected to lose half of its current workforce in the next 

two to five years. The bill’s provisions to ensure a transition to a new generation 

of inspectors will help MSHA meet this daunting problem. 

Miner ombudsman—As written, ASSE cannot support provisions requiring creation of the Office of Miner Ombudsman within the Department of Labor (DoL). 

Given the discord and lack of trust that now exists between workers and the mining 

industry and MSHA, we fully understand the need for some assistance in representing those interests wanting to make mines safer and healthier for workers. 

However, much of what this position hopes to achieve is already addressed in 

MSHA regulations (some specifics?). We also do not believe that simply adding another position to an infrastructure for complaints, even if it is not working as well 

as it should, would guarantee the results the bill understandably wants to achieve. 

We urge you and the Committee to consider another approach. 

What is needed in the mining industry is less another advocate than someone who 

could help resolve the various differences that separate not only miners from the 

industry and MSHA, but also industry from MSHA. We urge you to consider the 

creation under DoL of an independent office for arbitration of mining conflicts. 

Under rules established by the American Arbitration Association or similar organization, such an office could serve as a non-mandatory middle ground to resolve 

issues beyond MSHA’s failure to listen to miner complaints about mine hazards. 

Other problems plague the industry and take away from effective safety enforcement, including inspectors with inadequate understanding of their responsibilities 

and small business mine owners feeling helpless in the face of a legal process easily 

brought to bear by MSHA. As it does in other industries, arbitration could very well 

prove to lessen the costs of enforcement. If such an office were staffed with mine 

safety and health expertise, as current provisions in the bill require an ombudsman 

to be, we believe the current difficulties in identifying and addressing mining risks 

could be improved. 

Pattern of violations—While the intent of these provisions is well meaning, ASSE 

cannot support the provisions addressing pattern of violations. We would hope that 

Congressional efforts could focus on changes that will directly advance safety. From 

the experience of our members, MSHA already uses its pattern of violations powers 

and recently published a policy document to explain how patterns will be determined with more precision. A new penalty component is not necessary at this point, 

given the impact that a pattern finding will already have on mine operations. It 

would also be redundant given MSHA’s new ‘‘repeat violation’’ penalty criterion in 

30 CFR Part 100. MSHA added this in an effort to go beyond the dictates of the 

Mine Improvement and New Emergency Response (MINER) Act in order to heighten penalties for all classes of violations that indicate a pattern or practice of certain 

types of safety or health deficiencies. Consistent with our overall comments, we 

would hope that the attention of both Congress and MSHA could be directed to more 

pressing needs for improvement. This is not one of those areas. 

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Notification of abatement—Given recent history, believing that all personnel need 

to be removed from a mine following an operator’s failure to notify MSHA that any 

violation has been abated is understandable. However, not every violation in a mine 

threatens lives and, under current law, MSHA already is empowered to impose a 

$6,500 per day penalty for failure to abate. It also may issue orders under Section 

104(b) of the Mine Act that trigger withdrawal of miners from all or part of a mine 

under such circumstances. Also, our members report that MSHA inspectors are generally quick to revisit the mine to determine whether abatement has occurred. To 

ensure that this provision is targeted to truly threatening situations, where MSHA’s 

resources should be targeted, we urge that the requirement to remove personnel following failure to abate be limited to citations that are significant and substantial. 

Failure to timely pay penalty assessments—ASSE has no position on provisions 

aimed at ensuring timely payment of penalty assessments. This is not directly a 

safety issue. Our members, however, report that the difficulty often appears to be 

the MSHA’s inability to ensure that penalties are collected and that adequate communications exist with the Department of Justice to ensure enforcement. While we 

understand the frustration in Congress with the failure to correct this problem, this 

provision could very well result in the closure of an entire mine over non-payment 

of a $112 penalty. Given the administrative problems MSHA has demonstrated in 

enforcing penalty assessments, such a result may be too harsh. 

Penalties—The appropriateness of the various penalty provisions contained in the 

bill is beyond ASSE’s expertise. In general, we do not take positions on what 

amounts are appropriate both to penalize those who violate safety and health laws 

and to ensure an employer’s commitment to safety and health in the future. We 

would hope this issue could be the subject of research by NIOSH so that penalties 

can be constructed in a way that effectively brings about safe and healthy mines. 

Until research can provide that insight, it is difficult for our members to determine 

effective penalties. 

In general, however, penalties that fail to cause mine operators to protect miners 

adequately are too small, and penalties that cause a mine owner to give up a business when conditions are correctable and the owner has demonstrated an overall 

commitment to operate safely are too large. From ASSE’s viewpoint, a safety and 

health professional’s work is to protect workers and property and to help a business 

do well. Good safety has a direct and positive effect on the bottom line of any business, including mines. We urge you and the Committee to keep that fundamental 

principal to safety in mind when considering appropriate penalties. 

In that light, our members disagree with the elimination of criteria that consider 

the impact of penalties on a company’s ability to remain in business. Small 5-person 

mines, for example, should not be faced with the same minimum penalties as multinational corporations when it comes to citations. A case-by-case analysis must be 

retained at all levels of enforcement. 

Federal licensing advisory committee—ASSE applauds the inclusion of this provision in the bill, supports its enactment and respectfully asks that ASSE members 

be included in such an advisory committee. Many states already provide for licensing of certain categories of miners, foremen and those engaged in special activities, 

including blasters and electricians. Federal licensing could enhance portability of 

skills and give assurances to mine operators of employee competence. We urge inclusion of appropriately mine safety and health personnel who have the needed experience and have achieved appropriate accredited certifications such as the Certified 

Safety Professional (CSP), Certified Industrial Hygienist (CIH) or Certified Mine 

Professional (CMP). These certifications would fit well any federal licensing program. 

Rescue, Recovery and Incident Investigation Authority 

Emergency call center/contact information/mine location maps—ASSE supports 

provisions requiring MSHA to staff with qualified personnel a 24/7 emergency call 

center as well as the detailed contact information of rescue and mine personnel. Requiring maps of all operating and abandoned mines to be maintained on the DoL 

website is also a positive step forward. We do, however, question the need to provide 

search capabilities that allow mines to be located by congressional district. While 

a small point, anything that can be done to de-politicize this nation’s commitment 

to mine safety needs to be taken. The other search criteria are useful enough for 

those who might know congressional districts. 

Required notification of emergencies and serious incidents—ASSE supports provisions clarifying that certain categories of ‘‘accidents’’ could be reported within one 

hour, rather than within 15 minutes. In our members’ experience to date, the15-

minute rule is already proving somewhat infeasible, especially for underground operations with limited personnel available to render assistance while also being able 

110

to communicate with MSHA. Perhaps Congress can revisit this issue in general and 

take testimony about the practical impact of the ‘‘15-minute’’ rule, especially now 

that MSHA’s final report in the Sago case has indicated that the notification of 

MSHA was not a causal or indirect factor in the loss of life at that operation. 

Emergency medical response—ASSE supports provisions intended to improve 

emergency medical response capabilities following mine emergencies. As we have expressed with other provisions, however, we urge that implementation of these provisions be done in the context of a thoughtful analysis of all the issues impacting the 

survival of miners and the capabilities of MSHA. 

CSB—ASSE fully supports the good work of the U.S. Chemical Safety and Hazard 

Investigation Board’s (CSB) efforts in helping industry understand and address 

chemical safety issues. We also understand the implied goal here of having for the 

mining industry what exists for the chemical industry and, with the National Traffic 

Safety Board (NTSB), for transportation—an independent authority with expertise 

to give industry unbiased assessments of accidents to help ensure they do not reoccur. Nevertheless, we cannot support this specific means of achieving that aim. CSB 

has specific capabilities in addressing chemical risks, as the NTSB does in transportation. It would only dilute that capability to ask it to become expert in mining. We 

urge you and the Committee to consider other alternatives, perhaps even establishing a separate independent agency to take on this work. 

Respirable Dust Standards 

The need to set appropriate crystalline silica and respirable coal dust standards 

is clear and long overdue. While the desire to set standards legislatively is attractive 

given the failure of OSHA and MSHA to move these issues forward, ASSE must be 

concerned with setting a precedent in dispensing with rulemaking, as the bill would 

do. ASSE’s own proposal to update exposure limits urges use of negotiated rulemaking. Even under the best circumstances, setting an exposure limit is difficult 

given the litigious environment surrounding the safety and health field. Providing 

a means for all stakeholders to participate in a process will help disarm those who 

are intent on inhibiting any forward movement on exposure limits. In addition, the 

provision that specifies the sampling protocol is redundant and could cause confusion. NIOSH currently has sampling methods established for monitoring the respirable silica dust for both coal mines as well as other mines (NIOSH method 7603 

and method 7500). These methods are effective when used in conjunction with good 

industrial hygiene practices—initial evaluation to determine those areas and operations to be tested, personal monitoring of representative operations for two individuals in the area in case of equipment malfunctioning or tampering, full shift sampling, and use of the specified number of blanks per samples collected to correct for 

contamination. 

Comments on Miner Health Enhancement Act of 2007 (HR 2769) 

Air Contaminants 

ASSE fully agrees that the existing health standards now enforced by MSHA are 

outdated and are in need of revision. For the metal/nonmetal sector, MSHA had incorporated by reference the 1973 version of the American Conference of Governmental Industrial Hygienists’ (ACGIH) Threshold Limit Values and the coal sector 

is governed by the 1972 TLVs. ASSE has long supported a comprehensive overhaul 

of both MSHA and OSHA permissible exposure limits (PELs) and has suggested 

that this be done through negotiated rulemaking, as discussed above. We maintain 

that this is preferable to dispensing entirely with rulemaking and simply adopting 

the existing and future NIOSH Recommended Exposure Limits (RELs). 

Although NIOSH is well-qualified to make recommendations on appropriate 

health standards, these provisions are legally flawed because it would render the 

Administrative Procedure Act a nullity for the mining industry, depriving its members of their due process rights to be part of the rulemaking process through noticeand-comment standards development, as required by federal law. A simple fix to 

this problem is appealing, but simply mandating a solution would set a harmful 

precedent for avoiding formal rulemaking on other subjects relative to occupational 

and mine safety and health. The rulemaking process is one of the key mechanisms 

for ensuring that appropriate technology and sound science are recognized when setting requirements that carry heavy civil and criminal sanctions. 

Asbestos 

With respect to provisions intended to update MSHA’s asbestos standard, ASSE 

urges caution in moving forward legislatively. ASSE participated in the ongoing 

MSHA rulemaking on this subject and fully supported adoption of the OSHA PEL 

by MSHA. Since that rule is near completion, it would be difficult to abandon the 

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regulatory administrative record that been created and substitute congressional fiat 

when dealing with the technological, scientific and geological issues related to sampling, analysis and mineral definitions that are so important when measuring asbestos in an environment containing naturally occurring non-asbestiform minerals. 

These provisions should be replaced with provisions mandating that MSHA complete its rulemaking. 

Hazard Communication 

ASSE understands the bill’s intent to require MSHA to move forward in advancing hazard communications. However, the bill misses an opportunity to help the 

mining industry take the lead on an initiative that will bring it in line with the 

world’s economy. Instead of requiring the agency to apply provisions of its October 

2000 interim final rule, which was modeled on the now outdated OSHA HazCom 

Standard at 29 CFR 1910.1200, Congress should be requiring MSHA to look forward. The bill should require MSHA to begin revision of its HazCom standard (30 

CFR Part 47) to adopt the Global Harmonization Standard (GHS), which is already 

under consideration by OSHA. It is critical for all sectors of American commerce to 

be able to market its products on a global basis. Mining cannot be left behind, and 

allowing it to do so makes little sense given the multi-national ownership of many 

U.S.-based mines. 

Conclusion 

The mining industry as a whole has made significant advances in mine safety 

since enactment of the Mine Act in 1977. Although the last several years have been 

marred by several high-profile underground coal mine disasters, both coal and 

metal/nonmetal fatalities and injury rates have been steadily declining. More focus 

in preventing deaths and injuries in minds is needed, however, and ASSE is committed to working with Congress and MSHA to further enhance mine safety and 

health through proactive initiatives and programs that can protect miners while 

also giving mine operators the tools they need to implement best practices and the 

latest technology. 

ASSE was active during consideration of the MINER bill and in the MSHA oversight hearings during 2006. The Administrator of ASSE’s Mining Practice Specialty, 

Michael Neason, provided helpful testimony before the Senate Health, Education, 

Labor and Pensions Committee on the Sago tragedy from the perspective of a mine 

safety expert. ASSE again offers the expertise and experience of its members in the 

event that the Committee holds mine safety hearings. ASSE and its members are 

pleased to be able to work with Congress to achieve our mutual goal of helping ensure that every miner has a chance every day to go home safe and healthy to their 

families. 

Sincerely, 

MICHAEL W. THOMPSON, CSP, 

President. 

March 24, 2008. 

Hon. JOE WILSON, 

U.S. House of Representatives, 212 Cannon House Office Building, Washington DC. 

DEAR CONGRESSMAN WILSON: The Miner Health Enhancement Act of 2007 (H.R. 

2769) and the Supplemental Mine Improvement and New Emergency Response Act 

(S-MINER) of 2007 (H.R. 2768) raise serious concerns for a broad spectrum of industries that are strongly committed to safety and health in mines and provide jobs 

and resources that contribute to America’s homes, schools, hospitals, businesses, 

consumer and industrial products, and roads. 

The Mine Improvement and New Emergency Response (MINER) Act, which garnered overwhelming bi-partisan congressional support and was endorsed by labor 

and industry prior to its passage little more than one year ago, has already contributed to significant success in improving safety. But much remains to be accomplished by both the Mine Safety and Health Administration (MSHA) and the industry to achieve full implementation. Diverting attention and resources away from the 

critical task of fulfilling the mandates of the MINER Act towards an additional 

layer of statutory requirements could ultimately undermine the progress that has 

been made on miner training and other vital objectives of the act. 

Since the MINER Act was signed into law on June 15, 2006, MSHA has taken aggressive action to implement its provisions. Industry has invested more than $250 

million thus far complying with the act’s mandates. Most importantly, mining operations are on track to return to year-over-year improvements in mining safety. To 

impose further legislation at this time is premature, when the full impact of the 

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original MINER Act cannot yet be comprehensively measured. Further, and as explained in the enclosed paper, a number of the provisions of the new legislation are 

unnecessary and could be counterproductive to our shared mission of improving 

mining safety. 

Safety is, and will continue to be, the highest priority of our industries. Thank 

you for your consideration of our concerns with the pending legislation. 

Sincerely, 

INDUSTRIAL MINERALS ASSOCIATION—NORTH AMERICA, 

NATIONAL LIME ASSOCIATION, 

NATIONAL MINING ASSOCIATION, 

NATIONAL STONE, SAND & GRAVEL ASSOCIATION, 

PORTLAND CEMENT ASSOCIATION, 

THE SALT INSTITUTE. 

NIOSH Comments on Mandatory Participation in the Coal Workers’ Health 

Surveillance Program, Confidentiality Issues, and Potential Special Protections 

Mandatory Participation: Medical surveillance is an important tool for disease 

prevention. Identifying sentinel cases can motivate actions to improve work conditions and better protect other workers. Also, early disease identification can lead to 

actions to reduce or eliminate dust exposure for the affected individual, hopefully 

improving his or her health outcome. Thus, on the surface, mandatory participation 

might seem like a positive step. However, the situation is more complex and there 

would be significant issues that would need to be addressed before instituting mandatory participation in the Coal Workers’ Health Surveillance Program. 

Steps would need to be taken to ensure that reduction of dust exposure, rather 

than medical screening, remains the first concern. The most effective means for 

eliminating coal workers’ pneumoconiosis (CWP) is preventing dust exposure. Simply identifying workers who already have disease does not address this root issue. 

Furthermore, removing workers who already have disease from exposure will not 

fully prevent disease progression, so some individuals would still experience symptomatic disease. Thus, the primary focus in prevention should be to reduce dust exposure, not screen for disease after the fact. 

There would also need to be a full understanding of how any mandatory federal 

x-ray program would impact state workers’ compensation systems. For example, it 

has been our impression in at least one state that miners are reluctant to participate in surveillance and participation rates are low because participation might adversely impact on the ability to receive compensation for CWP. A miner may be required to file for compensation within a certain period or lose the right to file based 

on an x ray showing some disease and be paid according to the level of disease 

shown at that time even though the disease will often progress. 

In addition, any program would have to take into consideration the ability of miners to opt out in certain circumstances. For example, there are female miners in 

their child bearing years. Such miners might want to opt out of x-ray screening out 

of concern for adverse reproductive outcomes. Even a ‘‘mandatory’’ surveillance program would need to make allowances for such situations by providing parameters 

for miners to opt out of having x-rays. 

In addition to these issues, any mandatory surveillance program should also address potential interventions that may be needed as a result of the x-ray program. 

For many coal miners, work in the mining industry provides the best and sometimes 

the only option for employment in their localities. Mandatory surveillance would 

ideally need to be paired with programs to help miners with disease remain in the 

work force and maintain their financial status. 

A final concern is that mandating participation in x-ray surveillance would result 

in a marked increase in the human and financial cost of the coal workers’ x-ray surveillance program. Significant additional resources would be needed to take on a 

project of this magnitude. 

Thus, it is not entirely clear that mandating participation in surveillance by miners is an optimal approach for preventing CWP. Furthermore, there would be significant issues and concerns about this approach. Also, additional interventions 

would need to be undertaken to mitigate negative impacts of mandatory surveillance. 

Confidentiality Issues: The present Act requires the mine operator to pay for surveillance chest films. This leads to the mine operator having a contract relationship 

with the x ray facility performing chest films. Depending on the billing information 

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provided, mine operators often know which miners have undergone x-ray screening. 

This leads to concerns about confidentiality, especially in small work forces. 

Another area of potential concern is leak of information from facilities performing 

x-rays, especially in small communities. 

A known loss of confidentiality occurs when affected miners exert their rights for 

transfer to low dust jobs. This necessitates communication of their condition to mine 

operators. Fear of consequences may be one reason for the relatively low number 

of miners entitled to transfer rights who take advantage of them. 

Potential Special Protections: Given that a major concern for confidentiality in the 

current program is the financial and contractual relationship between mine operators and x-ray facilities, measures should be taken to better separate these parties. 

Perhaps mine operators could pay into a fund, with the amount based on number 

of miners employed. The fund operator could then contract with x-ray facilities, removing the direct link to the mine operator. 

Technical Assistance Comments on H.R. 2678 and H.R. 2679, Submitted for 

the Record by Jeffery L. Kohler, Ph.D. 

The following technical assistance comments on H.R. 2678 and H.R. 2679 are in 

response to a written request, which was received on July 30, 2007, from the House 

Committee on Education and Labor. In that request, the committee asked NIOSH 

to provide written technical comments on the matters covered by the Mine Safety 

and Health Administration’s (MSHA) written statement to the committee, dated 

July 26, 2007, that fall within NIOSH’s area of responsibility and expertise. The Administration has not formulated a position on the legislation, but these comments 

provide NIOSH’s answers to questions of a technical nature that fall within 

NIOSH’s area of responsibility and expertise, including post accident communications, underground refuges, mine seals, ventilation controls, belt air, and the selfcontained self-rescuer (SCSR) inspection program. 

Section 4(a), Post Accident Communications: 

The National Institute for Occupational Safety and Health (NIOSH) shares the 

Mine Safety and Health Administration’s (MSHA) vision of completely wireless systems, which do not have any vulnerable infrastructure within the mine, and we continue to invest in research leading toward such systems. Our research, however, indicates that wave propagation characteristics in underground coal mines, combined 

with energy limitations in an explosive environment, will prevent completely wireless systems in most mines for many years to come. Thus, for the near term, there 

is a need to advance emergency communications technology while providing a foundation for future improvements that will lead to the realization of our shared vision. 

We also accept that it will be impractical to develop systems that will withstand 

any disaster scenario in every location within every mine. As such, we believe it is 

prudent to employ systems that will work in most mines under common disaster 

scenarios. Our research is demonstrating a practical path forward in which achievable technological developments can be used in the short term to significantly improve emergency communications while providing a platform for future improvements like wireless systems. 

The language in the bill is consistent with our recommended approach. While all 

currently-available systems have vulnerabilities, we believe that systems such as 

the ‘‘leaky feeder’’ system and the ‘‘wireless mesh’’ system can be made more survivable through both physical and electronic improvements. While the bill uses the 

term ‘‘hardened,’’ this may suggest a focus on physical structures, but there are also 

enhancements that could be made to the system architecture or electronics that 

would make the system more survivable, so we suggest substituting the term ‘‘improved’’ or ‘‘enhanced.’’ Further, at this time, standard definitions do not exist for 

the term ‘‘hardened,’’ which may lead to some confusion. We believe that the language of the bill as currently written would not interfere with current research and 

industry efforts to develop and implement a solution that is completely wireless, and 

consequently, we approve of that language, with the modification noted above. 

Section 4(b), Underground Refuges: 

We agree with MSHA on the need to allow for refuge alternatives in addition to 

refuge chambers; allowing alternatives will better balance the need for mines to provide refuge but also facilitate mine evacuations. NIOSH is investigating various refuge alternatives and will make specific recommendations in its report to Congress, 

which is due in December 2007. Hopefully, the language in the bill will allow a comprehensive use of refuge alternatives in addition to chambers. This will permit mine 

operators to choose from a suite of alternatives to facilitate both escape and rescue. 

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NIOSH is also investigating location guidelines for refuge alternatives, such as 

the maximum distance that a chamber should be placed from the face. Although the 

distance of 1,000 feet specified in the bill seems reasonable for many situations, it 

may not be the best metric. For example, the distance could be based on two parameters: the speed at which the mineworkers would be able to travel in zero visibility; 

and the capacity of their oxygen supply. In some mines, this distance could be significantly greater or less than 1,000 feet. Again, there would be value in referencing 

these metrics to the findings of the NIOSH research effort on refuge alternatives. 

Section 4(c)(2), Mine Seals: 

NIOSH Information Circular (IC) 9500, Explosion Pressure Design Criteria for 

New Seals in U.S. Coal Mines, establishes a set of conditions to seal gob areas safely. Scenarios are described that require monitoring of the gob behind the seals, as 

well as those that do not require monitoring—the Circular explicitly recommends 

that, if a seal meets a particular strength standard (which depends on the configuration of the sealed area), there is no need for ongoing monitoring. The bill as written would require ongoing monitoring of all newly-sealed gob areas. That is a more 

stringent standard than is recommended by the Circular, and NIOSH does not believe such a standard is necessary. Further, to the extent that monitoring is to be 

required, NIOSH does not think it appropriate to include specific monitoring locations and procedures in legislation at this time, as additional research is being conducted. Additionally, NIOSH believes that the bill should be written to accommodate a full range of measures that could be used to improve safety insofar as gob 

explosions are concerned, rather than focusing solely on explosion pressure and 

monitoring practices. 

Section 4(c)(3), Ventilation Controls: 

Ventilation controls need to be designed to withstand the normal forces associated 

with mining and to provide improved resistance to overpressure from mine explosions. 

The ventilation controls should be designed and constructed of materials that can 

handle the geotechnical conditions associated with stress and movement of the rock 

masses to avoid compromising their performance. For a particular set of conditions, 

the materials used for the controls may have to withstand movement of the roof and 

floor rocks, which requires a material that does not break when subjected to squeezing. Thus, ventilation controls should be designed to meet specific performance 

standards and should not specify use of particular materials. This would include 

consideration of the amount of overpressure the controls could withstand to ensure 

that the ventilation system is not completely disrupted in the event of an explosion. 

This is the approach that has been adopted in Queensland, Australia, in stoppings 

and overcasts, in their Schedule 4 Ventilation Control Devices and Design Criteria, 

of Coal Mining Safety and Health Regulations (2001). Their stoppings, overcasts, 

and regulators must be designed to withstand an overpressure ranging from 2 psi 

to 5 psi depending on the location. Their standard includes design requirements 

such as ‘‘fire resistant and of substantial construction’’ for certain applications. A 

similar approach in the bill would result in a higher level of safety. 

Section 4(d), Belt Air: 

The Technical Study Panel, established by the Mine Improvement and New Emergency Response Act of 2006, is investigating the use of belt air, and is addressing 

the broad issues of belt flammability and the use of belt air. Their findings can certainly help illuminate the discussion around the practice. Notwithstanding, we are 

concerned that the language of the bill would not even allow the use of belt air 

under any circumstances. This could create a significant danger in at least a few 

mining districts: those in which coal bumps are a problem due to the heavy overburden pressures such as in Utah and deep mines with high methane emission rates 

combined with significant ground control problems such as in Alabama. 

A task force was assembled in 1985 to examine the complex issues of using twoentry longwall mining systems. Ground control ramifications, ventilations, and fire 

hazards were also reviewed. The technical team consisted of MSHA and U.S. Bureau of Mines staffs. Ground control stability in underground coal mines is influenced by several factors, which include geology, overburden, rock properties and in 

situ stresses, and mine design. Various combinations or these factors make generalized design recommendations difficult. For example, while it may only influence a 

small number of western mines in the Central Rocky Mountain region, the use of 

two-entry systems with a small yielding pillar has resulted in dramatic improvements in stability when extreme, primarily deep, mining conditions were encountered. By reducing the total load carried by the chain pillars, substantial reductions 

in bumps, roof falls, and floor heave have been realized. The two-entry gate road 

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designs seem to limit the stress interaction and provide for a more stable mining 

environment as attested by the bump/bounce, roof fall, and injury/fatality history. 

Depth is not always the only consideration; different material properties of the coal, 

coupled with weaker roof and floor, have eliminated bumps in the Southern Appalachian region. The requirements for additional ventilation to remove explosive 

gases necessitate using multiple intake and return entries with only minor ground 

control design considerations for controlling the vertical stress concentrations inherent with greater mining depths. While these issues only affect a smaller number of 

mines, they cannot be ignored and mine-specific variances would help ensure safety 

for these special circumstances. 

Section 4(i), SCSR Inspection Program: 

The U.S. Department of Labor (DOL) is required to establish a program for periodic random testing of SCSRs. Testing of these devices is currently being done by 

NIOSH through its Long Term Field Evaluation (LTFE) Program. This is a program 

through which NIOSH randomly selects 400 Self-Contained Self Rescuer (SCSR) devices from underground mines across the country (100 from each of the 4 types of 

SCSRs approved for use in underground mines) and removes them for testing to 

evaluate their continued functionality. NIOSH believes that its functional sampling 

schedule under the LTFE Program (http://www.cdc.gov/niosh/npptl/topics/respirators/ltfe/ltfe.html) has sufficient statistical power to ensure the functional performance of SCSRs that pass the manufacturers’ inspection criteria. NIOSH lacks 

the testing capacity to test significantly more SCSRs in a given year. According to 

MSHA’s analysis, this legislation could require the testing of about 20,000 SCSRs 

per year, and this would far exceed NIOSH’s capacity. Further, NIOSH provides 

new SCSRs to replace each one removed from a mine because NIOSH functional 

testing results in the destruction of each unit tested. Currently, NIOSH bears the 

replacement costs although under the legislation these replacement costs would be 

shifted to industry. If the 5% testing requirement under the legislation is limited 

to non-destructive visual inspection that would be less objectionable; however, 

NIOSH would defer to MSHA to make such a determination. 

NIOSH would defer to MSHA in determining the appropriate level of initial inspection verification necessary to assure miners are not using devices that do not 

pass the manufacturers’ inspection criteria. 

[Statements and supplemental materials submitted for this hearing were posted at the following committee Internet address:]

http://edlabor.house.gov/hearings/wp072607.shtml

[Whereupon, at 3:37 p.m., the subcommittee was adjourned.]

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