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BUILDING A BETTER PARTNERSHIP: EXPLORING 

THE MINE SAFETY AND HEALTH ADMINISTRATION’S REGULATION OF SOUTHERN APPALACHIAN MINING 

FIELD HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JUNE 21, 2013 

Serial No. 113–46 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

MARK POCAN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on June 21, 2013 ............................................................................... 1 

WITNESSES 

Mr. Sam Bratton, President, North Carolina Aggregates Association 

Oral Statement ................................................................................................. 10 

Written Statement ............................................................................................ 13 

Mr. Mack McNeely, Vice President, LBM Industries and Nantahala Talc 

and Limestone 

Oral Statement ................................................................................................. 18 

Written Statement ............................................................................................ 20 

Mr. Jeff Stoll, Safety and Health Manager, the Quartz Corporation 

Oral Statement ................................................................................................. 28 

Written Statement ............................................................................................ 30 

Mr. Marvin Lichtenfels, Deputy Administrator for Metal/Non-Metal, Mine 

Safety and Health Administration 

Oral Statement ................................................................................................. 47 

Written Statement ............................................................................................ 49 

APPENDIX 

A Letter from Cherie Berry Submitted for the Record by Rep. Meadows .......... 76 

A Statement by Rep. Virginia Foxx Submitted for the Record by Rep. Meadows ......................................................................................................................... 78

A Statement for the Record by C. Howard Nye, Martin Marietta Materials, 

Submitted by Rep. Meadows ............................................................................... 79 

A Statement for the Record by the National Stone, Sand and Gravel Association (NSSGA) ........................................................................................................ 80 

MSHA’s Response to Questions the Committee on OGR Submitted for the 

Record ................................................................................................................... 84 

Pictures of Frayed Seat Belt ................................................................................... 89 

Letters and emails from Caterpillar (and Dealer, Carolina Cat) Regarding 

Safe Access/Fall Protection .................................................................................. 92 

(1) 

BUILDING A BETTER PARTNERSHIP: EXPLORING THE MINE SAFETY AND HEALTH ADMINISTRATION’S REGULATION OF SOUTHERN APPALACHIAN MINING 

FIELD HEARING 

Friday, June 21, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON GOVERNMENT OPERATIONS

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

Washington, D.C. 

The subcommittee met, pursuant to call, at 9:38 a.m., in Mitchell 

County Historic Courthouse, 11 North Mitchell Avenue, 

Bakersville, NC, Hon. John L. Mica [chairman of the subcommittee] presiding. 

Present: Representatives Mica and Meadows. 

Also Present: Representatives Roe and Griffith. 

Staff Present: Joe Brazauskas, Counsel; John Cuaderes, Deputy 

Staff Director; Linda Good, Chief Clerk. 

Mr. MICA. Good morning. I would like to welcome you to the Subcommittee on Government Operations hearing this morning. We 

are pleased to be in Bakersville, North Carolina. The topic of today’s subcommittee hearing is Building a Better Partnership: Exploring the Mine Safety and Health Administration’s Regulation of 

Southern Appalachian Mining. 

I am Congressman John Mica. I am privileged to chair the Government Operations Subcommittee of the United States House of 

Representatives’ full Committee on Government Oversight and Reform. 

I am joined today by actually the Vice Chairman of our panel, 

and we are an investigative body of Congress, the chief investigative panel of the House of Representatives’ Oversight and Reform 

Committee, and our specific Subcommittee on Government Operations has very broad jurisdiction to investigate various waste, 

fraud, abuse, and programs of the Federal Government. The Vice 

Chair of that subcommittee, as I said, is the congressman from this 

district in North Carolina, Mark Meadows. We would not be here 

if it wasn’t for his request. Each of the subcommittee members do 

get the opportunity to choose the topics that need review by the 

panel, and Congressman Meadows requested that I conduct this 

hearing and this review of mine safety, which is particularly important, as you know, to this district and this state, and to the country. 

2 

So we are pleased to be here at his request, and also have him. 

He is a member and now a leader of the committee. That is pretty 

good, too, considering I think this is his first term to be the Vice 

Chair of a subcommittee of Congress. So, thank you for your invitation and also fine work. We will report back to his citizens. 

Being the most senior member of the panel, you wake up one day 

and you find out that everybody to you is your junior. But after 21 

years on this committee I have seen many members, and we are 

very pleased with the quality of your representative and his participation, full participation and commitment that he has provided 

to our committee. So, I thank him again for his work and his leadership role. 

Before getting down to business, I think I will first introduce— 

actually, this is quite an historic gathering. I can’t remember a 

field hearing where we had four members from four different 

states. I am from Florida. In addition to the representative from 

North Carolina, we are also honored to have with us a very distinguished member from Tennessee, right across the way, Dr. Phil 

Roe. I have had the opportunity to work with him. He is a member 

of the Education Workforce Committee, and also the Veterans Affairs Committee, and he serves on one of the oversight and investigations panels and chairs the Subcommittee on Health, Employment, Labor, and Pensions. So it is quite fitting that we are joined 

by a nearby colleague of Mr. Meadows in this district. So welcome, 

Dr. Roe, Congressman Roe, to this historic district. 

And then again, we are joined by a Virginia congressman, Morgan Griffith. He is a member of the House Energy and Commerce 

Committee, and the subcommittees on health, energy, power, and 

also part of an oversight and investigations panel in that particular 

subcommittee. 

I want to welcome both Representative Griffith and Representative Roe. Since they are not members of this panel, I ask unanimous consent that both be allowed to participate in this subcommittee hearing. Without objection, so ordered. 

So the order of presentation and business this morning will be 

opening statements by members, and I will begin that process. 

Then I will yield to the Vice Chair, Congressman Meadows, Mr. 

Roe, and then Mr. Griffith. 

Then we have two panels, I believe, this morning. First we are 

going to hear from the panel that is assembled, and then we have 

another panel consisting of one witness. 

So that will be the order of business today. And with that, I will 

begin my few opening remarks. 

Again, I thank Mr. Meadows for your leadership and for having 

us in your district, this beautiful area of North Carolina, and also 

the United States. My family and I had an opportunity over the 

years to visit Mitchell County and spend a lot of time over in 

Spruce Pine in a place called Don’s. I think they used to have a 

double cheeseburger —— 

[Laughter.] 

Mr. MICA. I think that was one of the great losses. Also, I think 

Mr. McHenry had that area first. I practically had tears in my eyes 

after he told me that Spruce Pine was a core of that mountain 

3 

some years ago. It is a great area, and I am pleased to be here in 

the county seat. 

The purpose of our committee, again, that I will touch briefly in 

my introductory remarks, is the chief investigative panel of the 

House of Representatives. The history of this committee, the Government Oversight and Reform, I think you have probably seen Mr. 

Meadows and myself. Most recently we have been kind of jammed 

on scandals in Washington. I am trying to remember where we left 

off, Mark. We started on Benghazi, and then we got shifted to IRS, 

and it looks like we have NSA around the corner, but this panel 

is very important. 

The Founding Fathers were always skeptical of government, having come from colonial status where the parliament and the king 

had imposed a lot of restrictions on their life and freedom and their 

rights. In fact, it is kind of interesting if you look at the Declaration of Independence, you find they are declaring at the very beginning independence from England and the parliament and the king, 

but then most of the Declaration is citing the abuses of the British 

government, the king and the parliament. It is kind of funny. If 

you read through some of that, it is almost like why we are here 

today. 

One of my favorites is he sent out his agents among us to harass 

and give, at that time, the colonists a rough time with bureaucracy 

and government. From that time forward, I think the evolution of 

our government and our agencies has been to try to keep government under control and sort of at bay. People had always sought 

freedom and independence and supported enterprise and production of the individual. 

But that is—part of the history of this panel was they started 

Congress and had authorizers and appropriators, some of whom 

created the programs. It started with the Constitution, the Congress, and we create the programs through authorizing committees, 

and then we also fund them through appropriating committees. 

Well, the Founding Fathers, way back as early as the beginning 

of creating any of these government agencies, never really trusted 

the authorizers and appropriators and created the predecessor of 

our committee, which is Government Oversight and Reform. And 

they wanted to check to see how the programs were working, how 

the money was spent, and delegate the intent of Congress. 

So that, briefly, is the background of how our committee evolved 

to today and the reason we are here. So when you are trying to 

raise your family, make a living and survive all the various activities that government at various levels imposes on you, our job is 

to represent you and again make certain that we get it right. 

So with that background on the committee, today’s topic is mine 

safety, and it is incredibly important to the economy of this community and this state, as I said, and that is why Mr. Meadows 

brought us here. Just driving through here from Spruce Pine, if 

you can’t see the importance of mining to this region, you must 

have your blinders on or your shades are down. But this is a very 

active mining area for the state, and it is important I think that 

we strike a balance between promoting safety, which everyone is 

encouraged to make certain we get right, but also the balance of 

being able to conduct commerce and do both in a positive fashion. 

4 

So today we are going to hear from three metal mining operators 

in North Carolina, and they are going to tell us some of their stories about the way our Federal Mine Safety and Health Administration has impacted their business. We will hear again about some 

of the problems related to enforcement practices and other issues 

that have proven difficult sometimes for them to conduct their 

business and industry under our mine safety agency. It is an important agency and it has an important goal in ensuring that 

mines and miners are safe and, again, that people are secure in 

their employment and safety. 

However, the mine safety agency, like many Federal agencies, is 

a powerful government agency. They have the responsibility to conduct inspection of every metal and nonmetal mine two times a 

year. During these inspections, agents can write citations for violations, as we have heard, and they can also impose penalties on the 

mine operators. 

We should also note that this Federal agency can enter a mine 

property at any time if the agency feels it should under the law. 

So it has a lot of discretion in entering and monitoring the activities and businesses of mining. Of course, there will always be a 

friction between the regulators and the folks that they regulate. 

What we try to do is sort it out and achieve some balance. 

However, it should be the goal of a Federal agency such as the 

mine safety agency to partner with the community to work to 

achieve a common goal of providing a safe workplace and environment, and also a thriving mining industry. Once you close the 

mines down and people aren’t working, you don’t have to worry 

about regulating an industry or people working. 

However, the past eight years has been a change in the philosophy of the mine safety agency, and we want to examine again 

what is taking place and see if fairness prevails for all parties concerned. Since 2005, the total citations have increased some 550 percent, and that is something also we want to look at today. 

We believe also that some of the folks that have received these 

fines, may have done so in an inordinate amount of fines. And also, 

again, we heard about the significant increase in the fines. So I 

think that is something else we need to review in this hearing 

today and see if we have gotten out of balance in the whole process. 

Moreover, I called this hearing to allow operators from North 

Carolina to tell Congress and their representatives how they feel 

the mine safety agency has operated. I will ask them and hear 

from them about how they feel it has worked with them, the authority granted by Congress, and again see what makes sense and 

how we can both be responsible with safety but also have a balance 

that allows us to continue to have this industry thrive and the 

business succeed. 

So I want to thank the witnesses for being with us today. I am 

particularly grateful we have two other states represented, and the 

representatives of two nearby districts joining us. 

Now what I will do is I will yield to our Vice Chair and thank 

him again for his leadership. He is a special kind of guy and has 

a business background like myself, and I think he gets it. He also, 

I will have to say, got us here this morning, and we are delighted 

to be here. 

5 

So I will yield to the gentleman from North Carolina, our Vice 

Chair, Mr. Meadows. 

Mr. MEADOWS. Thank you, Mr. Chairman. You have got to be 

coming here to get here, and so it is a real encouragement just to 

see your involvement, and I want to start off first by saying thank 

you for being here, truly for showing up on this important issue. 

I thank the witnesses for coming today and being willing to testify 

and take time out. 

Mining is a critical part of North Carolina’s economy. We have 

over 800 mining permits throughout the state and over 100,000 

acres. It brings in directly $1 billion in revenue, and if you take 

that out in terms of the total economy, the effect of mining is somewhere around $3.5 billion. 

It accounts for over 10,000 jobs directly, and the indirect implications that we know, obviously here in Mitchell County, but 

throughout the district, some 27,150 indirect jobs as part of the 

mining industry. And these are not low-paying jobs. The average 

salary in the mining industry is right at $50,000. So these are 

good-paying jobs that are good for the economy. 

But I also want to talk about the importance of mining just a little bit because some of the people may not know how critical it is. 

Crushed stone, obviously, is one of our major raw materials that 

we look at. But that is not the only thing that we mine. Ninety percent, 90 percent of the world’s high-quality quartz comes from 

western North Carolina. In addition to that, some 60 percent of the 

United States’ feldspar comes from North Carolina, as well. 

And in addition to that, some of the clay and other bricks used— 

and we get an unbelievable amount of resources that come from 

western North Carolina. So the aggregates industry plays a huge 

role in our economy. Sand and gravel, as we start to look at it, we 

have people here who will be testifying to that point, the construction of highways and roads, not only in North Carolina but across 

America. As a former developer, I know firsthand how critical that 

is, having access to that. One of our people here, we have used 

their product here, Mr. McNeely. As he testifies, he had a quarry 

very close to some property that I own. 

But since coming to Washington, I have heard from not only 

many mine operators that are experiencing problems, but before I 

got there I heard story after story saying, you know, you really 

need to look into that. 

So we want to make sure that we provide a safe working environment. This is not about doing something in an unsafe manner. 

But we also need to make sure that regulations don’t overburden 

what we have. MSHA has an important job of keeping our miners 

safe, but what I have been hearing, and we look forward to hearing 

testimony today, is really kind of a direction that has changed from 

training to more of enforcement. 

We called this hearing today, Mr. Chairman, both to hear directly from the North Carolina mine operators what the impact of 

MSHA on their businesses has been so that they can tell their stories, the frustrations they have dealing with Federal agencies and 

whose philosophy seems to sort that out. But we are not asking 

necessarily MSHA to relax their standards as much as they are as 

providing a consistent standard for safety, something that we can 

6 

hear as we were looking at things. It is knowing that standard and 

knowing that that standard is fair and how we are able to deal 

with that, and that it doesn’t hurt jobs ultimately because that is 

what it is all about. 

We are pleased today to have representatives from MSHA here. 

We look forward to hearing your testimony as well in terms of 

maintaining safety. 

But at this time, I would like to take the opportunity to thank 

Chairman Mica for calling this hearing and coming to my district. 

At the beginning of Congress, I told the Chairman how important 

this issue was to my people back home, and in an environment 

where a lot of times people don’t listen, the Chairman said, well, 

if it is that important, we need to have a hearing and shed some 

light on some of that, so he is here today to do that. So I wanted 

to thank the Chairman. 

Also, I want to personally thank Chairman Congressman Roe 

from Tennessee who has been a good friend early on. He understands these issues. I am humbled by this because I am on a panel 

today with three chairmen of subcommittees. So to have this kind 

of historic—I think the Chairman mentioned it is an historic day. 

To have four members of Congress from four different states, to 

have three chairmen on a subcommittee hearing just shows how 

important it is. So I would like to thank him, as well. 

And Chairman Congressman Griffith from Virginia knows mining well. We talked on the House floor just the other day about 

some of the issues that he deals with in Virginia. So having reasonable MSHA regulations are critical. 

I would like to ask the Chairman to just highlight three individual letter records and ask him for his consent to have them for 

the record, if you don’t mind, Mr. Chairman. One of them is from 

the Commissioner of Labor, Cherie Berry, who is very concerned 

that we have gone to an enforcement mechanism from a training. 

She has her head of mining and safety, William Garrenger, here 

today. I thank him for coming. So I would ask, Mr. Chairman, if 

we could submit this record, this letter for the record. 

In addition to that, I have a letter from Congresswoman Virginia 

Foxx, who knows this area well, is from Avery County originally. 

She serves in Watauga in Congress, in Watauga and going over. 

She is also on the subcommittee that actually has the legislative 

jurisdiction, along with Congressman Roe, over this particular 

area, and she has expressed her real concern that we have gone 

from a safety training environment to an enforcement environment 

and has sent a letter in support of this hearing as well. 

And then finally, we have a letter from the Chairman of the 

Board of Directors of the National Stone, Sand and Gravel Association, which highlights some of the issues that they are dealing with 

as an association and some of these, and, Mr. Chairman, I would 

ask that you would consider these for the record. 

Mr. MICA. Without objection, both the statements from the North 

Carolina Secretary of Labor, Representative Foxx, and —— 

Mr. MEADOWS. Yes. Yes, sir. 

Mr. MICA.—will all be included as part of the record. Without objection, so ordered. 

Mr. MEADOWS. And with that, Mr. Chairman, I yield back. 

7 

Mr. MICA. Well, thank you again. And, Mr. Meadows, let me ask 

you, if you would, as a courtesy before I go to the other members, 

I had an opportunity to meet the mayor and the sheriff. Is the 

mayor here? Would you like to introduce your mayor? And I thank 

him also. I love history, and to be in the 1907, I think it is, historic 

courthouse, it is quite a treat to be here and to see the great work 

they have done in restoring this historic building. But would you 

like to introduce him? 

Mr. MEADOWS. Thank you, Mr. Chairman. 

A special thank-you to our mayor that has done such a great job 

here. When we talk about North Carolina, we talk about real hospitality. So our mayor has done that, and I just applaud him. 

And our sheriff, thank you for the security. 

[Applause.] 

Mr. MICA. Thank you again, Representative Meadows. 

Now I yield to Dr. Roe. You are recognized. Welcome. 

Mr. ROE. Thank you, Chairman, for the opportunity to speak, 

and also I want to brag on Chairman Mica. He just three years 

ago, I guess, came over to my district, and we all had some transportation issues. At that time he chaired the Transportation and 

Infrastructure, a huge committee on Capitol Hill. Chairman, thank 

you for what you’re doing. I really do appreciate it. 

Mr. MICA. Thank you. It is great to help. We worked on the 

transportation bill, which was not easy. I described it one time as 

trying to give—like trying to give birth to a porcupine. 

[Laughter.] 

Mr. MICA. If you think it is easy, you should have been with the 

four of us yesterday on the floor debating the farm bill. That was 

not a successful delivery. 

[Laughter.] 

Mr. MICA. But I thank you again for all of your help and coming 

to this hearing. And again, it is rare that you get representatives, 

people with concurrent responsibilities in their districts and interests that all mesh and bringing them together for a field hearing 

like this. So, thank you. 

Mr. ROE. Well, I want to thank the crowd for being here today. 

This is what democracy is all about, to bring the government to the 

people. And the panel, thank you. I wanted to thank you because 

when we hold hearings in Washington, we have people who are 

really professional testifiers, and all of their testimony is very slick 

and so forth, and you all got straight to the point, where a country 

boy like me can understand you. I appreciate that very much. 

And I also want to thank Mark and Morgan Griffith. We have 

become fast and furious friends. You have elected a great representative for North Carolina. 

[Applause.] 

Mr. ROE. I certainly know this issue very well in North Carolina 

because all of my district parallels North Carolina, from Mountain 

City all the way to Gatlinburg. So I am over here all the time, and 

you probably won’t recognize me. I’ll either have a golf club in my 

hand or I will have hiking boots on, so I am over here to have fun 

when I come to North Carolina. 

I want to introduce a very dear friend of mine that I have known 

for 25 years, Bill Slate sitting right back there. Bill called on me 

8 

in my medical practice for 25 years, and I appreciate your friendship. One of the things that made it a lot easier for me to get elected to Congress with these three gentlemen was that I delivered my 

own voters, so it helped a lot. 

[Laughter.] 

Mr. ROE. It worked out pretty well. 

[Laughter.] 

Mr. ROE. The reason I enjoy these hearings and, Mr. Chairman, 

the reason that I will jump at the chance to come, I have held numerous hearings outside of Washington, and this is where you really—and I can assure you, inside of 395, something is wrong with 

the oxygen, I can tell you. It doesn’t work right. Out here, you can 

actually find out what is going on with real people, real jobs, and 

about these mandates. 

And, Mayor, I want to tell you and the sheriff, if I possibly can— 

I was the mayor of Johnson City before I went to the Congress. 

That was my political job. I never served in any other political job. 

I would never vote for an unfunded mandate in local government 

if I know what I am doing. Now, these 1,000-page bills, sometimes 

I might get through them. But I had enough of them dropped on 

me to understand what you are dealing with here on the local level. 

So I want to thank you for the work the local people do. The best 

government in the world is local government, and that is one of the 

reasons that we are here today, is to bring the Federal Government 

to the local level. And we are going to learn a lot today, a lot more 

than I would learn in an hour or so if I had stayed in Washington. 

And the other reason I am here, Mark invited me, and anything 

that I can do to support him; and secondly, the MSHA comes under 

my committee of Education and the Workforce, which is why I am 

here today. 

And I yield back, Mr. Chairman. 

Mr. MICA. Thank you again for being with us. 

Now the gentleman from Virginia’s 9th District, Congressman 

Griffith, welcome, and you are recognized. 

Mr. GRIFFITH. Thank you, Chairman. I do appreciate you doing 

this. These field hearings are so important, as Congressman Roe 

said. He came to one that we had last year in my district. This is 

a way—a lot of folks can’t make it to D.C. to get their opinions 

heard. This is a way that they not only get their opinions heard 

by some congressmen, but also all of this goes into the official 

record. So it is good to get it on the record, how people are feeling, 

and I do appreciate you taking the time to be here, Mr. Chairman. 

You come from the farthest away of any of us. I will tell you that, 

as Congressman Meadows said, he said you have to be coming here 

to get here. I know that feeling, because if you look at the map and 

you go as the crow flies from my house down here, it is a pretty 

straight line. 

[Laughter.] 

Mr. GRIFFITH. In fact, 221 goes through my district, which is 

right close to here. But that is not the way you get here. 

[Laughter.] 

Mr. GRIFFITH. I came through Phil’s district. 

[Laughter.] 

9 

Mr. GRIFFITH. I circled down 81 and circled back through Tennessee to get here because when you have a mountain district, you 

understand these things. That is how you get here. So it is like trying to get—about a third of my district land mass, I go through 

Phil’s district. I drop down and go around a mountain because you 

can go through the mountains. It just will take you an extra 45 

minutes to an hour. So I am glad to be with you all today. 

I am so glad to be here. My district comprises a lot of mining operations. Most of it is coal, but we also have a significant amount 

of aggregates mined in my district of southwest Virginia, and so it 

is very important. And when I saw that there was this opportunity 

to come here and to learn a little bit about what is going on with 

MSHA, because my folks are always talking about MSHA, but I 

serve on the Energy and Commerce Committee, so most of my time 

has been spent defending the rights of citizens to have affordable 

energy—aka coal—and use that. But I also hear complaints on a 

regular basis about MSHA, so I am glad that I am here to share 

that. 

I will say that Dr. Roe got to Congress a lot easier than I did, 

because when you deliver your clients, or your voters—your clients 

are your voters, and you deliver them, that is a good thing. I am 

a criminal defense attorney. 

[Laughter.] 

Mr. GRIFFITH. So about half of my clients couldn’t vote for me. 

[Laughter.] 

Mr. GRIFFITH. But I am glad to be with you. As Chairman Mica 

said, I serve on the Oversight Subcommittee of Energy and Commerce, and sometimes it gets confusing because your committee, as 

you know, Representative Meadows and Chairman Mica, you all 

have a big oversight committee. Then each one of the other standing committees in Congress has an oversight committee that oversees particular matters under their jurisdiction. So I am glad to be 

sitting with the folks who sit on the big oversight committee. They 

have been getting all the action lately. I am a little jealous. 

[Laughter.] 

Mr. GRIFFITH. But I do look forward to today’s hearing and finding out—I know that we are not dealing with MSHA from the coal 

side but from the other side of the split in MSHA safety, but a lot 

of the issues are overlapping. I am just glad to be invited to be 

with you, and thank you for doing the good work that you all are 

doing. 

Mr. MICA. Well, thank you. 

And let me say at this point, since we have heard from the members with their opening statements, that all members may have 

seven days to submit opening statements for the record. Without 

objection, so ordered. 

And we will now turn to our patiently-waiting first panel of witnesses, and I will introduce them. 

Again, Mr. Jeff Stoll is the Safety and Health Manager at the 

Quartz Corporation; Mr. Mack McNeely is Vice President of LBM 

Industries; and Mr. Sam Bratton is the President of the North 

Carolina Aggregates Association. 

Gentlemen, let me just tell you a couple of the ground rules. 

First up, this is an investigative panel. In a minute, you will be 

10 

sworn in. You will be given—and we will be pretty liberal with the 

clock today. But if you get too lengthy we will cut your oratory, and 

you can ask through the Chair to submit additional information 

about anything you would like to be part of the record. So you have 

that ability to do that, having gone one at a time to address the 

panel today. 

So with those basic ground rules, if you will stand, please, and 

raise your right hand. 

[Witnesses sworn.] 

Mr. MICA. Let the record reflect that the three witnesses all answered in the affirmative. 

I think we are going to start today with Mr. Bratton, since you 

represent the North Carolina Aggregates Association. Mr. Sam 

Bratton, we will start with you. So, welcome, sir. Thank you for 

being with us, and you are recognized to present your testimony. 

WITNESS STATEMENTS 

STATEMENT OF SAM BRATTON 

Mr. BRATTON. Thank you. Good morning, Mr. Chairman and 

members of the committee. My name is Sam Bratton. I am President of the Wake Stone Corporation and the North Carolina Aggregates Association. Wake Stone Corporation is a 43-year-old family 

business, a crushed stone operation with 122 employees. As President of the North Carolina Aggregates Association, I represent an 

industry with over 135 crushed stone quarries and 500 sand and 

gravel pits. 

I am here today to give voluntary testimony on behalf of the aggregates industry of North Carolina regarding the role the Mine 

Safety and Health Administration plays in regulating metal and 

nonmetal mining in North Carolina. I have provided in my written 

testimony several copies of correspondence to and from MSHA, plus 

several examples of MSHA inspector overreach provided by associate members. 

However, I do want to say for the record, some companies were 

not comfortable identifying themselves in their submissions due to 

fear of retribution. 

The North Carolina Aggregates Association wants to assure Congress and MSHA that our members are not against safety regulations. Safety is our number-one priority. But our industry’s relationship with MSHA is strained. My last encounter with Mr. 

Lichtenfels best illustrates MSHA’s perception of the mining industry. 

On November 30th, 2010, in a meeting between the North Carolina and South Carolina Aggregates Associations and MSHA, many 

members complained about MSHA requiring the chocking of loaded 

heavy equipment on a grade. These pieces of equipment are just 

too large, in all practicality, to chock on a grade fully loaded, but 

MSHA inspectors have been instructing equipment operators to 

chock-load their trucks on a grade in the quarry pit and then place 

the transmission in neutral and release the parking brake. The 

chocks consistently failed when tested in this manner. 

When it was explained to Mr. Lichtenfels that this practice was 

not only impractical but also dangerous, he looked directly at me 

11 

and, I quote, ‘‘You are still killing people, and so we are going to 

continue to do what we need to do.’’ I admit that there was a time 

in the aggregate mining industry when safety was not our top priority. But in today’s business environment, producers are much 

more sophisticated and focused on safety. 

Proof of this commitment is a 2011 metal and nonmetal injury 

rate of 2.6 per 100 workers, which was lower than coal, construction, manufacturing, education, health, forestry, logging, state and 

local government, and many others, as well as MSHA itself, which 

has an injury rate of 5.7 per 100 workers, more than double the 

metal/nonmetal mining industry. I want to repeat, MSHA’s injury 

rate is more than double the metal/nonmetal mining injury rate. 

I would like to share with you an example of overreach. In Wake 

Stone Corporation’s Ashe County quarry, an inspector witnessed a 

customer truck driver climb on the side of his parked truck to 

check the truck bed. The driver was very careful and deliberate in 

performing this action, using three points of contact at all times. 

The inspector issued Wake Stone an imminent danger order and 

substantial and significant citation, with a high likelihood of permanent disability. 

When asked what should be done to prevent this circumstance 

from occurring again, the inspector told us that all customer activity outside of a truck must be done off quarry property. We explained that it is much more dangerous for a driver to perform this 

action on the shoulder of a public roadway versus in a quarry, 

where an area is provided for trucks to pull over. The inspector 

stated he did not care what happened to the driver outside the 

quarry entrance. But we presented a MSHA video in our defense 

which we possessed at the time of the citation. It was entitled 

‘‘Customer Delivery Truck Drivers Hazard Training.’’ This is a 

slide from the video. 

The video clearly shows the exact same activity performed in a 

quarry in the same manner in order to demonstrate the proper way 

to climb a truck to get to a load. After viewing the video, MSHA 

refused to vacate the citation and imminent danger order. So we 

contested it. Unfortunately, we decided to settle for pennies after 

two years and three months and countless hours and dollars of resources. The decision to settle was based upon our concern that 

legal precedent could be set if the case went before the biased 

MSHA commission. 

It is our belief that training is much more effective than enforcement. But MSHA continues to place much more emphasis on enforcement. However, Joe Main, Assistant Secretary of Labor for 

MSHA said himself that training is a top priority for MSHA. But 

MSHA recently requested in their 2013 budget a $5 million reduction in funding for the state grants program, requesting the funds 

be shifted to enforcement; so, from training to enforcement. The reduction in $5 million to be shared among 49 states does not appear 

significant. It is only $5 million shared, but it would devastate the 

North Carolina Department of Labor’s Mine and Quarry Bureau 

Miner Safety Training Program. 

Our goal is a better relationship with MSHA. We desire consistency, transparency, cooperation, accountability, fair and due process of contested citations, differentiation of surface aggregate proVerDate Aug 31 2005 09:59 Sep 03, 2013 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\DOCS\82336.TXT APRIL
12 

duction from underground mining and all coal mining, and performance-based enforcement and more training dollars. We believe 

these goals can be achieved by the following recommendations. 

First, establish a three-member committee to review contested citations with representatives from MSHA, mining, and an MSHAtrained attorney. 

Two, develop a method of communicating all vacated citations to 

MSHA inspectors and mine operators. This is not done today. 

Conduct a process audit of MSHA procedures. 

Focus more resources on training. 

Establish a performance-based inspection process so those operations that need more enforcement get more enforcement, and 

those that don’t do not. 

And more differentiation between coal mining and surface aggregate operations. 

I want to state, our industry needs MSHA. We need safety regulation. But we do not need it in the form it is administered today. 

I now ask all the people present that support this testimony 

through the North Carolina Aggregates Association to please stand. 

Mr. Chairman, committee members, we respectfully request the 

Committee on Oversight and Government Reform take action on 

these recommendations. Thank you. 

[Prepared statement of Mr. Bratton follows:] 

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Mr. MICA. Thank you for your testimony. 

Let the record reflect that your members also stood, a large number of them, and we appreciate also that they are with us today. 

Mr. BRATTON. Yes, sir. 

Mr. MICA. We are going to hold questions until we have heard 

from all of the panelists. 

Mr. Mack McNeely is next. He is the Vice President of LBM Industries. 

Welcome, sir. You are recognized. 

STATEMENT OF MACK MCNEELY 

Mr. MCNEELY. Mr. Chairman and members of the committee, 

thank you for holding this hearing and for this opportunity to testify. I appreciate your interest in our concerns with MSHA. I am 

Mack McNeely, Vice President of LBM Industries in Sapphire, 

North Carolina. We have three operations that are under MSHA 

jurisdiction. Our primary contribution to the local community is 

our mining operations. We treat safety at our mines as a priority. 

We are a very small operation. We work hand-in-hand with our 

employees, and the last thing we would ever want is for somebody 

to be hurt. We have a very good safety record. 

I would also like to say that MSHA has an important role in 

mine safety. We support that role. Safety is paramount to us, and 

we do not mind following the rules. The biggest issue we have with 

MSHA is how unpredictable and inconsistent they are with their 

interpretations and enforcement. Let me give you a few examples. 

In 1998, we installed a new conveyor with guarding at one of our 

quarries. Before putting the conveyor in service, we had a courtesy 

inspection by MSHA to make sure it was in compliance. After more 

than 20 inspections, an inspector in 2010 cited us for inadequate 

guards on the conveyor, so we had to stop production for 24 hours 

while rebuilding the guards. We were given a field citation, but we 

couldn’t resume production until we had new guards installed to 

satisfy the inspector. 

When ordering new conveyors from a manufacturer in Pennsylvania, they asked us to provide drawings showing where to locate 

the safety rails along the conveyor walkways. The conveyor company told us that every MSHA district interprets the safety standard differently, that there was no way they could install a rail to 

satisfy the inspectors by all the districts. 

We received a citation for a seat belt on the Bobcat series. Could 

you show the slide, please? The edge of the loose end of the belt 

was a bit frayed. Even though the fray had no effect on safety, we 

received a citation for S&S, high negligence, and likely to cause a 

fatality, with an $1,100 penalty. We negotiated it down, but it 

should not have been cited at all. It had nothing to do with safety. 

And my last example is one that is still on the grill. In February 

2010, the inspector gave us fair notice that an excavator didn’t 

have hand rails for fall protection. The manufacturers build equipment according to international safety standards, but the standards accepted by the rest of the modern world were no longer good 

enough for MSHA. We contacted Caterpillar, but they do not supply such rails because their equipment, of course, was designed to 

meet international safety standards, and, ‘‘MSHA has not provided 

19 

clearly-defined standards regarding adequate fall protection or safe 

access.’’ 

We found an after-market supplier for guard rail kits and ordered one. We had a dozen machines that would need these kits, 

and it was going to cost us over $50,000. In June before the guard 

rail kit had even arrived, MSHA issued a bulletin that said if the 

equipment meets industry standards, that would be deemed sufficient. 

In November, I attended a meeting where the assistant secretary, Jim Main, was the keynote speaker. He also affirmed that 

if our equipment met industry standards, we were okay, so we 

thought that was pretty solvent when he said that our folks could 

use the access pass that the manufacturers had installed. 

During a 2011 inspection, the inspector asked to look at a part 

of the excavator. Our superintendent climbed up the steps, stepped 

onto the deck and grabbed the hand holds, which is the way the 

manufacturer had designed access to the engine compartment. The 

inspector issued a citation and imminent danger order for not using 

fall protection. We explained MSHA’s policy to the inspector and 

that we heard it straight from Jim Main. We got a special assessment penalty of $6,300. 

At the closeout meeting, the inspector said something quite different. He told us, and I quote, ‘‘This is not about safety. It’s about 

compliance.’’ Well, I ask you, compliance with what? What more 

could we have done than comply? We know that similar citations 

have been vacated, but not ours. We have other inspectors tell us 

that the citation should not have been issued, and I would like to 

say that our last inspection, which was this week, the inspector 

said going—alright with the same citation. 

I would imagine, as you evaluate my testimony today, it would 

be easy to believe that these issues are unusual, but they are not. 

Usually the people who testify before this committee are the ones 

with the biggest, strongest story to tell, but the strength of my testimony today has to be its commonness. Similar testimony could be 

repeated by practically every miner in the state. 

MSHA’s focus needs to change from compliance back to safety. 

We need clarity and consistency with safety rules and a timely appeals process. We need your help and need MSHA to do a better 

job. It would be wonderful to be able to view MSHA as a partner 

in safety instead of an adversary. 

Thank you again for your interest in our concerns and this opportunity to testify. 

[Prepared statement of Mr. McNeely follows:] 

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Mr. MICA. Thank you for your testimony, Mr. McNeely. 

We will now turn to our final witness on this panel, Mr. Jeff 

Stoll, and he is the Safety and Health Manager at Quartz Corporation. 

Welcome, and you are recognized. 

STATEMENT OF JEFF STOLL 

Mr. STOLL. Chairman Mica and members of the committee, subcommittee, first let me thank the Government Operations Subcommittee and all others in this room for allowing me the privilege 

to speak. I believe that the very existence of this meeting underscores what this great country stands for, freedom, and the right 

to express peaceful opinion or dissention to governmental authorities. 

Today, I come before you to testify regarding the Mine Safety 

and Health Administration reform debate. Most of the mining community would agree that since the inception of the Mine Act, 

MSHA has certainly had an overall positive impact on miner safety. But, they have since become out of balance under their current 

leadership by emphasizing a punitive approach instead of training 

and education. We in western North Carolina believe that these 

policies have created undue economic hardship on responsible operators and do very little to improve miner safety. 

This is our petition to the committee and MSHA. 

Update the 1977 Mine Act to reflect the safety modernizations 

and technological advancements made in the past 36 years. Quite 

frankly, the Mine Act is very archaic as it is currently written. 

Number two, MSHA’s discrimination and enforcement push 

needs to be reviewed from the standpoint of hindering legitimate 

company applications of disciplinary actions on employees. As these 

gentlemen indicated, accountability is a critical component of having a sound safety program. 

Number three, the arbitrary and capricious citational inspection 

system lacks due process application and contains a triple penalty 

economic burden. We have the terminate citations at the behest of 

the inspectors, the fines that are consequently negotiated and are 

paid by the operators, and then we have legal fees on top of that 

if we disagree with how these citations have been written. So I call 

that kind of a triple penalty burden on the operators. 

Number four, reconfigure the 800-number hazard complaint callin system to ensure frivolous calls are not being made, creating 

confusion, mistrust, and resource drains for MSHA and industry. 

Number five, fines and penalties, or at least a percentage thereof, should be placed in a safety escrow account, essentially a beneficial safety project grant program managed by MSHA’s Small 

Mines Office. 

Number six, MSHA’s push to cut state grant program monies 

and funding for training and education is a step in the wrong direction for safety. More state resources should be utilized, minimizing 

the growth of MSHA’s bureaucracy. 

Number seven, MSHA should exercise impartiality on fatal investigation root-cause evaluations, eliminating automatic blame on 

mine management. 

29 

Number eight, MSHA’s secretive approach on inspector notes, 

and the extent and hurdles for industry to obtain them—i.e., Freedom of Information Act—is not furthering safety improvement by 

preventing trust and transparency development between the regulator and the mining community. Those notes should be made 

available immediately. It’s about safety. 

Number nine, if MSHA’s ARs are going to make critical and 

many times very costly engineering calls on mine operators, then 

they need to obtain the proper credentials and credibility to do so. 

As a matter of appearance and credibility, MSHA should investigate why their own internal injury rates are so high since, as we 

understand it, the universal or bottom-line goal of any safety regulator or company safety program, what we all work for, is injury 

reduction or prevention. 

Number eleven, reduce the overall out-of-balance approach by 

MSHA as it relates to their budget, amount of resources spent, 

where these resources are spent, policy reviews and transparency 

to the U.S. citizenry and the regulated mining community. 

In summary, in a recent mining safety conference I attended, the 

central theme was that an effective safety program must not always use techno-speak and tough policy talk, but more of a personal connection and caring approach to each and every person. 

That is the best way to be a parent, as I have learned, a spouse, 

a friend, and, yes, a regulator. In this way also, MSHA should look 

more at this approach in how to be a more effective accountability 

organization for the mining community. 

After all, mining is critical to our economy here in western North 

Carolina, as we all know. In fact, if it isn’t grown, it has to be 

mined. A smart MSHA is therefore required in this, the 21st century. Thank you. 

[Prepared statement of Mr. Stoll follows:] 

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Mr. MICA. Thank you. I thank all three of our witnesses for their 

testimony this morning, and we will start with a round of questions, and I will begin. 

First of all, to Mr. Bratton and Mr. McNeely, I saw some of the 

MSHA-produced training materials, the video. It appears from 

what you have said that some of the practices in their videos actually don’t comply with some of their safety mandates. Is that correct? 

Mr. BRATTON. Well, actually, the safety video was dismissed. 

They were dismissive of it, saying they weren’t aware of the existence of the video, and as far as the specifics about climbing on the 

side of the truck, there are not specifics about that in the standard. 

It is about safe access and things like that. So it is broad enough 

where they can take and interpret what they want, and so that is 

what they did with the imminent danger order. 

The inspector was—he was on a scrim tower 600 feet away, and 

we had to go down there and clear the area. The truck driver, 

when he was approached said, ‘‘You know, sir, this is a violation.’’ 

He said, ‘‘Well, I used three points of contact. You know, that is 

what I am told to do.’’ 

And anyway, the training video—I mean, MSHA is purposeful in 

allowing themselves a subjective interpretation at the time of the 

citation, and they also fall back on sets of circumstances being different. When you are able to get a citation vacated, they will not 

specifically say anything that would be precedent-setting because 

they want to continue to issue those citations. They just may understand that at this point you have put together a good enough 

defense, so they have got to vacate. 

So I don’t know—there is not anything specific in their regulations that says that there is a safe way to access it. They just say 

you are supposed to use safe access, and that driver did, in accordance with a training video that they had, and they just wanted to 

dismiss it. It wasn’t convenient for their argument. That is how 

they work. 

Mr. MICA. Let me say, too, and I was going to say this at the 

outset, first I thank you for coming to testify. When we had set this 

hearing up and we had you all selected as witnesses, I really appreciated you coming forward. Sometimes these agencies will intimidate some of our witnesses. In fact, I have found it difficult 

sometimes to get folks to come and testify because they fear, as 

someone said, retribution. 

I will tell all three of you, if there is any instance of what you 

feel is retribution or anyone giving you any difficulty as a result 

of your testifying today, I want you to notify the subcommittee or 

myself immediately. 

Mr. BRATTON. Thank you. 

Mr. MICA. I will guarantee you I will handle those people and 

they will not forget the truth that I rub off, and if they want to 

talk about retribution, I know how to provide it. 

[Laughter.] 

Mr. MICA. But I thank you for coming. 

This is very serious. There are so many instances in which these 

agencies have become so powerful that they do intimidate folks, 

and so I thank you. And you can tell them, too, if you hadn’t apVerDate Aug 31 2005 09:59 Sep 03, 2013 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\DOCS\82336.TXT APRIL
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peared, I probably would have subpoenaed you, but I have you all 

here anyway. 

[Laughter.] 

Mr. MICA. But that being said, it sounds like the penalties, they 

have gone overboard with the penalties. How is the industry affected by these—was it 500 percent increases, Mr. Bratton, Mr. 

McNeely, Mr. Stoll? Are they imposing a financial hardship? 

Mr. STOLL. I would say, if I may, we have had at one of our locations 2.2 million man-hours without an accident. The other location 

is approaching half a million. We have had three or four years in 

a row of record-setting injury rates. Our injury rate is about half 

or a third of that number. Mr. McNeely mentioned MSHA’s injury 

rate woes internally. 

Mr. MICA. That is their inspectors and their folks? 

Mr. STOLL. That is everybody that they employ, apparently. Ours 

is like one-third of theirs. However, in 2012, we were fined 

$143,000—$143,000. Now, that doesn’t add up. That just does not 

add up. 

Mr. MICA. Is that multiple infractions that they charged you 

with? 

Mr. STOLL. Multiple infractions, correct. 

Mr. MICA. And how about the others? Mr. McNeely, what is your 

experience? 

Mr. MCNEELY. Well, I would like to say that the fines have increased a good bit, but for our part, our biggest problem is the way 

that things get enforced in a manner—I mean, just like I mentioned this guarding issue. The fine might have been $200, and it 

might be very easy to beat that citation if you appeal it and go 

through the process for a couple of years, but the fact is we can’t 

resume production until those guards meet that particular inspector’s standards. 

Mr. MICA. The instance you cited, was that one instance in which 

they closed you down, or have there been others? 

Mr. MCNEELY. It is more like with the excavator issues. I have 

letters from Caterpillar going back to 2007 where they say MSHA 

will not give them good enough data to design a system for their 

excavators. They say it just goes back and forth between you have 

to have handrails, you don’t have to have handrails, every few 

months. It has been that way for years. And one day, all of a sudden, we get a $6,300 fine. A few months before that, we are told 

we need to order handrails, and we are looking at buying $50,000 

worth of handrails. 

Mr. MICA. You said there have been some 20 inspections before 

on that—what was that about? 

Mr. MCNEELY. That was the guarding issue. 

Mr. MICA. Okay. There is an inconsistency, a fair inconsistency 

in their standards and their—the unpredictability of enforcement. 

Mr. MCNEELY. Right, and we were told we need to buy handrails, and we ordered some, and before they get here, we get a bulletin that says we don’t need them. And then a few months after 

that, we hear the assistant secretary speak himself, and he says 

they are not required, and then the very next inspector that comes 

through the door writes us a $6,300 citation. 

Mr. MICA. Mr. Bratton, what is your experience? 

36 

Mr. BRATTON. The same as Mr. McNeely’s. There is something 

that they have called pattern of violation where they want to try 

to issue as many citations in order to then be able to continue to 

escalate the fines as part of a pattern of violation. Also, within the 

Rules to Live By they have, which I can’t cite by memory, but they 

have these rules that are escalating, increased severity, increased 

size. 

But one of the real costs that we have at MSHA is the cost of 

due process and the fact that in defending ourselves, the resources 

we have to—because we are basically guilty until proven innocent 

in the system and we have to hire attorneys, folks in-house have 

to spend a lot of time and effort on this, and they are citations that 

should never have been written. It was two years and three months 

on the fellow climbing on the side of the truck, preposterous, and 

it got to the end and, because you will conference a citation—they 

used to have more of an independent review. We just got a bulletin 

this week that now, if we contest a citation and we ask that it be 

conferenced, we have to go to the field office supervisor, who is the 

supervisor of the investigator who is training the investigator to 

issue the citations, and we have to go to him for some potential impartial conferencing, which does not exist. That system has now 

just been set up in the last week. June 17th that notice was issued. 

After that, then you appeal. You have an administrative law 

judge. If the administrative law judge rules in our favor, and 

MSHA doesn’t believe that that is precedent-setting, it may lead to 

you going in and settling. If you want to take it to the commission 

above this, MSHA’s commission, then it is a very biased group that 

rarely ever rules in opposition to MSHA. 

So this is just not—the whole system needs to be changed, and 

there needs to be an audit. I would love to see the Government Accountability Office go into MSHA and take a look at their processes. 

Mr. MICA. That is something we can request. I will confer with 

Mr. Meadows on that. In the meantime, too, the law—Mr. Stoll 

cited the law being some 36 years old. Has a state association or 

national, have you all developed an outline or suggestions for revisions in the law? Does anyone know? Mr. Stoll, you cited the aging 

of the 1977 Mine Act, that it doesn’t meet today’s technological advancements and modernization. Are there specific recommendations for updating that section? 

Mr. STOLL. I think corporately, through the associations, we have 

the National Mining Association, the North Carolina Aggregates 

Association, they have submitted some of these ideas —— 

Mr. MICA. Maybe you or, I don’t know, Mr. Bratton, you are with 

the Aggregates Association, do you have specific recommendations? 

Mr. BRATTON. Yes, sir. 

Mr. MICA. Changes in the law that you could submit them to the 

subcommittee, we would appreciate that. 

Mr. STOLL. If I may, Mr. Chairman, give you one example that 

I brought with me is safety belts and lines. That is in the Mine Act. 

In fact, let me just read it to you. It says, ‘‘Safety belts and lines 

shall be worn by persons in order to avoid the danger of falling.’’ 

Then it goes on and talks about working around stacks—taking 

them serious. Well, no company utilizes safety belts anymore. They 

37 

have been deemed, by testing and everything else, to be very hazardous to the miner. That is just one good example. We use fourpoint harnesses now when we apply fall protection. 

Mr. MICA. Again, maybe as a result of this hearing, we could get 

the various state and national associations, if they come together, 

they probably have some of this drafted already, their suggestions, 

and then we will see if we can’t check with them. Last year, I don’t 

know how we did it, but we did the gas pipeline safety. It was similarly outdated. We got the darn thing passed. I am still stunned. 

Mr. Waxman signed on as a co-sponsor. Miracles do happen, even 

in Congress. 

But again, with outdated laws and an agency that has sort of 

spun out of control here, it seems like basic guidelines and statute 

cries out for some reform. So we will work with you, and I am 

going to work with your representative to see what we can do in 

that regard. 

Mr. BRATTON. I would like to submit my oral testimony for the 

record. 

Mr. MICA. Without objection. 

Mr. BRATTON. In there I have six recommendations with some 

specifics. 

Mr. MICA. Excellent. 

Mr. BRATTON. But I would be pleased to participate in the process. 

Mr. MICA. Excellent. I am always quoted as saying, one of my favorite sayings to folks is don’t assume members of Congress know 

anything, start from that proposition. 

[Laughter.] 

Mr. MICA. And I can tell you, I am learning a lot today. That is 

how things get changed, through these kinds of hearings and exchanges. Of course, you can’t just talk about it. You do have to act 

on it. 

So with those comments, let me yield to Vice Chairman Meadows. You are recognized. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

And I thank each of you for your testimony. Obviously, some of 

these stories, Congressman Roe, as we start looking at these pictures, it is very illuminating when we see really the things that 

you have been cited for. My concern is when you start getting cited 

for, Mr. McNeely, in your case, a frayed hem on a seat belt that 

was not part of the restraining harness, it becomes very difficult 

to figure out what you need to spend your money on and how best 

to protect your workers when you are looking at an enforcement 

mechanism. Each time your inspector comes, you are trying to 

guess at what they want you to pay attention to? 

Mr. MCNEELY. Well, it does, and that is probably one of the main 

things that we would like to say, is we need some consistency. And 

on issues like the seat belt or like the excavator access, it just truly 

don’t make sense. And, I mean, mining companies have been using 

excavators since before MSHA was inspecting mining companies, 

and we still don’t know how to check the oil safely. That’s one of 

those things. 

Mr. MEADOWS. Right. So, you are here today. You are three people of an industry. I mentioned in my opening testimony, I think 

38 

there are 800 permitted sites across North Carolina, so you are just 

three of 800, and you probably represent more than just three of 

those sites. But as you look at that, one of the arguments is going 

to be that you guys are unique, that it is only the three of you, that 

you are the few that are having to deal with this. 

Would you say that other miners are experiencing similar or 

worse problems than what you have highlighted today? 

Mr. MCNEELY. I would say that the things that I highlighted 

today are very common, and we probably have had fewer problems 

than a lot of other companies, even other companies that do a good 

job with safety. 

Mr. MEADOWS. Okay. Mr. Bratton? 

Mr. BRATTON. Yes. Well, that is why I asked people in the audience to stand at the end of my testimony in support of it. 

Mr. MEADOWS. So what you are saying is that those people who 

stood, they have experienced similar situations like that? 

Mr. BRATTON. Yes. If you would like to stand again? 

Mr. MEADOWS. If you have experienced similar situations on the 

ambiguity, would you stand? 

Mr. BRATTON. Thank you. I hope that helps. 

Mr. MEADOWS. It does. Thank you. So, Mr. Stoll, you mentioned about a fine of $140,000-some-odd. 

You are a larger corporation, so you can afford that, right? Oh, you 

can’t. 

[Laughter.] 

Mr. MEADOWS. So when we have fines like that—and let me shift 

our focus a little bit. When we are going with enforcement and we 

are seeing that it is unfair—and this kind of piggybacks on what 

I asked Mr. McNeely—when we feel like enforcement is unfair, 

owners of mines are in a unique situation in that they can’t pick 

up their mine and move to another state. And so you are kind of 

trapped there and have to deal with it. 

But those that have options of mining abroad, do you see us losing more and more jobs to quarries, if there are the natural resources in those foreign countries? Do you see this as being so punitive that other mines that compete with us, we might lose jobs? 

It is tough when you are dealing with something that you measure 

in tons, that it is hard to import that. But do you see us losing 

some of the, let’s say, high-quality quartz? Mr. Stoll? 

Mr. STOLL. The simple answer is yes. The reason is when you 

look at our fines that we had from MSHA in 2012, you are looking 

at $143,000. That is hiring two months. We have 12, 13 percent unemployment here in Mitchell County, so that is the difference. 

Now, the arbitrary and capricious part, I know that is kind of a 

harsh term, but when you look at the imbalance of applications like 

inspectors that these two gentlemen mentioned, and then in our 

particular case a lot of that $143,000 generation came from an inspection of some of our fall protection systems that were deemed 

by other inspectors to be okay. So what you breed is you breed complacency. The operators in that were confused in what we have 

that is okay with the regulations and with MSHA, and what we 

don’t have that is okay. 

So, you know, I train our guys about complacency, especially 

some of our older miners, not to get complacent, to be as safe as 

39 

they can. If they don’t know how to do something, always keep 

your guard up for safety. How would MSHA expect the operators, 

then, to regulate if three inspectors come down and say that system is okay, and the next one comes in and fines us $100,000? So 

that imbalance can affect jobs and —— 

Mr. MEADOWS. So it is not knowing at what point you are going 

to get fined for what. And I think, as Mr. McNeely said, you had 

20 different inspections, and the Chairman kind of pointed that 

out, 20 different inspections, and then all of a sudden you were 

asked to stop work and install the guardrails. So let me go to that 

point. 

When you have these major operations, and when you get a citation and you have to stop work, that means sending people home? 

That means shutting it down? Or does it mean you just basically 

pay them while you can’t operate? Is that what you have to do occasionally? Mr. Bratton, you can see probably across the board. I 

mean, is a work stoppage what happens sometimes when these 

things are issued? 

Mr. BRATTON. Yes, and that means it can be stopping the use of 

that piece of equipment, which with a conveyor means you can’t operate the plant. 

Mr. MEADOWS. Right. 

Mr. BRATTON. There are other activities that still could be done, 

but it is an expensive interruption. 

Mr. MEADOWS. Is there a matrix? My time is running out, so I 

will finish with just a couple of very short questions here. Is there 

a matrix that says, okay, if you violate this, this is a major offense 

and you are subject to a $50,000 fine if you do this, or you are subject to work stoppage? Do you have—I mean, to give a practical example, when I am on the highway—and I never speed, sheriff. 

[Laughter.] 

Mr. MEADOWS. But when I am on the highway and I am going 

past the speed limit sign, I know that the minute I go beyond 55 

miles an hour, that I have the risk of getting a fine. Do you have 

the proper speed limits from the regulations that are in place? Do 

you understand all the speed limit signs that are out there, or are 

there some of them that are hidden behind bushes and things like 

that? 

Mr. MCNEELY. The short answer is no, we don’t. It is more like 

instead of having a speed limit, the signs say ‘‘Travel at safe 

speed.’’ So if you come through Bakersville, a safe speed can be one 

thing, and as you go through Spruce Pine, a safe speed could be 

another. And it could also be —— 

Mr. MEADOWS. So it is up to the police officer to decide that? 

Mr. MCNEELY. Exactly, and in some of these cases, it is things 

as big as say you were sitting in a turn lane to turn left and you 

get stopped and the patrolman says, ‘‘Your turn signal blinks too 

slow.’’ And you say, ‘‘Well, my car is a brand-new Toyota that is 

designed to all the safety standards.’’ And he says, ‘‘Well, I think 

it blinks too slow, it is a hazard, so you get it fixed.’’ And then before you get it fixed, you get a bulletin that says your turn signal 

is fine. 

[Laughter.] 

[Applause.] 

40 

Mr. MEADOWS. I will close with this because, Mr. Stoll, you mentioned complacency. I have visited some of these places. I personally have visited, and I am not going to mention any names in 

terms of what mines I have been in, but I haven’t found complacency. In fact, I found just the opposite. As a guy who doesn’t know 

what he is doing, I had to sign unbelievable waivers. 

[Laughter.] 

Mr. MEADOWS. Unbelievable. I had to go through a safety class 

to be there. And then I got—in one particular area they got all concerned because I left my Coke can sitting on the thing, and the 

wastebasket lid was half open. And they said, ‘‘No, you have to 

close the wastebasket lid. We need to make sure we get rid of this 

Coke because we can get fined in case it attracts bees and it could 

potentially sting somebody.’’ Is that an exaggeration, or have you 

heard something like that before? I mean, I was shocked to hear 

that. 

Mr. BRATTON. That is not an exaggeration. That is what is happening. 

Mr. MEADOWS. All right. With that, Mr. Chairman, I yield back. 

Mr. MICA. I recognize now Dr. Roe. 

Mr. ROE. I thank the Chairman. 

Mr. McNeely, just to let you know, that safety belt looked a lot 

better than the one I put on in the airplane I flew in. 

[Laughter.] 

Mr. ROE. I think there is a larger theme here today. It is one of 

overreach of government, and let me sort of share with you some 

things that may not have to do with mines. Well, one is a sulfur 

mine in my district, and they were issued an MSHA violation for 

a two-pronged toaster instead of a three-pronged toaster in the office. And, you know, I have only been in Congress four-and-a-half 

years, but I thought the canary died when you had an MSHA violation, something very significant, not potentially bees might get in 

a Coke can or a two-pronged toaster when you are trying to toast 

a sandwich. 

I think that inconsistency that varies from inspector to inspector 

makes it impossible to pinpoint. It is a moving target, and it may 

vary from one district to another, and I almost laughingly said welcome to Medicare. I have been dealing with this for 35 or 40 years 

with Medicare rules and regulations. You can’t offer your business 

and run your business. We treat safety at our mines very, very important, and the whitewater quarries have one lost-time accident 

the past 13 years. That is amazing. And the other quarry hasn’t 

lost time from an accident in 27 years. And one of the lost times 

recently was someone who had a heart attack at the site. 

I can recall when OSHA, at one of our hospitals, where the 

handicapped rail in the handicapped bathroom—the OSHA folks 

came by and said it should be here. People say it should be here, 

and that would be funny except somebody had to come in and 

change all of that and spend half a day doing that. And I told the 

hospital administrator, I said, ‘‘Look, this is simple. Just put you 

some brackets up and when OSHA comes, put the rail here. Stick 

the rail up here, and that will solve your problem.’’ 

[Laughter.] 

41 

Mr. ROE. But it doesn’t have anything to do with the primary 

goal, which is to make our miners safer. 

And I think that, Mr. Stoll, you brought out at the very beginning the purpose of these acts is to make it a safe working place 

for miners to do their job. And it looks to me like certainly, Mr. 

McNeely, the operation you have focuses on that. I can’t imagine 

a workplace being more safe than that, and to be dinged for something as ridiculous as a frayed end of a belt that doesn’t even have 

anything to do with staying in there, that would be like the end 

of my belt here is dinged and it won’t keep my pants up. I mean, 

that is how silly it is. 

So, Mr. Stoll, here is something I want to comment on. Mr. 

Bratton, you brought this up at the very beginning. One operator 

is going to be cited for a violation for operating in the same fashion 

suggested by the MSHA training video. The MSHA inspector told 

the operator that the training video was incorrect, that it was up 

to the inspector to determine the proper procedure. How do you all 

know what that is? You don’t, so you can’t comply. 

Mr. BRATTON. The operator—it is like being in the darkness. You 

can’t tell what is going to be a fine, what is going to be a citation, 

what is not. 

Mr. ROE. I am going to ask this panel a very tough question now, 

and it may not be a fair question, but any of you can jump on it. 

Do you feel that these inspectors are required, pressured to write 

citations on every inspection? If they go back and don’t find anything wrong with your operation, do you feel like they are pressured to find something? 

Mr. BRATTON. Yes, and we have had instances with members. 

There is a member who has an operation in the western part of the 

state, and they had zero citations. Well, then a couple of days later, 

three MSHA inspectors showed up with the field office supervisor 

and said you have zero citations. There is no doubt, there is no way 

you can have zero citations. I am standing here until you get a citation. So he gave them about three citations. Then the next week 

they came back for another inspection. 

Mr. MICA. Excuse me. Could you ask the witness when this occurred? 

Mr. ROE. You can respond to the Chairman’s question. 

Mr. BRATTON. When? 

Mr. MICA. When this occurred. 

Mr. BRATTON. Well, I have somebody in the audience who can 

tell you exactly when it was. 

Mr. MICA. Was it in the last year? Five years? 

Mr. BRATTON. David? 

VOICE. In 2010. 

Mr. MICA. In 2010, in the last three years. Thank you. 

Mr. ROE. Thank you, Mr. Chairman. 

And I will finish with two things to show you how hard it is for 

a business to prosper. In my medical practice at the end of every 

month, we would clean out the drawers and the closets for any 

medicine that may be going out of date and we send it to the 

homes so that people that don’t have access to care can get some 

medicine. We put it in a bag. Well, there are two bags in the medical office. One is a red bag; that is the biohazard bag. One is just 

42 

a clear trash bag. The nurse stuck it in the red bag. The OSHA 

inspector came in and said what’s in that bag? That was an $1,800 

fine for putting it in the wrong bag. 

The second is a needle that we use to draw fluid around a pregnant woman to check for their maturity, fetal maturity. This is a 

point where there is no safety. There isn’t one in the universe you 

can find. We didn’t have a letter in our office to say there wasn’t 

one in the universe. That was a $1,700 fine. 

We did exactly what you guys did. We wrote the check for $3,500 

to get these people out of our office so they wouldn’t be back every 

day. When you make a moving target—I mean, literally you cannot 

meet the standard, so it is almost extortion. It is so frustrating because if you would just tell me what to do or say, ‘‘you should have 

done this,’’ we wouldn’t do that. We would absolutely follow those 

rules. 

And the last thing I’ve got—my time is up. I wanted to ask you 

a question, maybe later. All of this money that is collected in fines, 

$120-something-million in 2005, in 1995 it was $20 million—I am 

rounding off these numbers—how much of that money is reinvested 

back into education about how to make the workplace safer? Mr. 

Stoll? 

Mr. STOLL. Well, I think there are opportunities with that 

money. 

Mr. ROE. Do you know how much of it is? I think I heard $5 million? Is that how much was invested? 

Mr. STOLL. How much is invested back? 

Mr. ROE. Yes, sir, into education. In other words, instead of not 

punishment but educating you all how to run a safer mine. 

Mr. STOLL. I think MSHA’s intentions are reflected in their 

budget by increasing the enforcement and decreasing the training 

and education. That is what their true intentions actually are released in MSHA’s budgets. 

I would like to mention something about the training and education part, and I would like to submit this for the record. On 

MSHA’s very own website, it actually says—it is an historical account. It says in the response—this is talking about the number of 

mining fatalities since 1910. We had then the Bureau of Mines, established in 1910. ‘‘Promoting safety in mining through research 

and training.’’ So does it make any sense, with the reduction in 

mining fatalities to the very record low levels today, that there is 

a motivation to increase the enforcement budget and decrease the 

training budget? 

The state grant program is slated to be de-funded here in North 

Carolina. That, to me, a lot of small operators—and we have other 

mechanisms to do our training. But for a lot of small operators 

probably in this room, that is a critical resource. So there is a disconnect with where you are putting your budgetary focus on and 

everything else from that perspective. 

The training thing, the gentleman over here, Mr. Bratton, mentioned that there were some disconnects with some videos. We actually discovered one of those on a fall protection video. It was titled, ‘‘Fall Protection: Your Lifeline to Safety,’’ and there were actually two or three citational items that MSHA has in that video. 

One was where I was talking fall protection applications, which is 

43 

somewhat of a technical application of safety, not to choke the lanyard around a rail. This particular video shows a miner in a training video. It shows him with a lanyard around a top rail instead 

of using the provided main basket that provided anchor points. 

The other item, the gentleman is working at height, and you 

have a hoist, and a hook has a broken safety latch, and we personally have been cited for broken safety latches before. 

So I think there is a need for them to update their education and 

training resources instead of putting more money into enforcement. 

It just makes sense to us. 

Mr. ROE. I thank the gentleman. I will yield back. 

Mr. MICA. Thank you, and we will now yield to Congressman 

Griffith. 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

Mr. Stoll, if you could tell me—you indicated you might lose jobs 

to other countries. Who is your—who may be your major competitor 

for your particular product? 

Mr. STOLL. China. 

Mr. GRIFFITH. And so what you are saying is that if costs continue to go up, and part of those costs are, of course, fines that you 

pay and the things that you can’t figure out, it puts China in a better position to compete with us in the worldwide market for your 

products. Is that not correct? 

Mr. STOLL. That is correct. And as a business, if we have increased costs, regulatory costs imposed on us, then customers—it 

is market-driven. Customers can go other places. 

Mr. GRIFFITH. Yes. And, Mr. McNeely and Mr. Bratton, if I could, 

you all started to talk about safety belts and harnesses, and your 

time ran out, and I see that there is a harness laying there on the 

floor and I would kind of like—I don’t know anything about the differences. Is the safety belt like the old lap belt in the car, or what 

is the safety belt like? 

Mr. BRATTON. The safety belt just went around your midsection 

and it was tied off. The problem was that there were numerous spinal injuries from falling. 

Mr. GRIFFITH. So if I make the analogy to the car, like we have 

been making to some of these others, it would be like the old lap 

belt in the cars when I was a kid, as opposed to the shoulder belts 

and the airbags and the lap belt combined. Is that what you are 

saying? 

Mr. BRATTON. I would say so. Yes, sir. What Mr. Stoll was talking to is that the regulations still specifically describe a belt that 

is not even used anymore because it is not safe. 

Mr. GRIFFITH. So technically, if they really wanted to cite you, 

they could cite you for having the safer equipment. So I could be— 

using that car analogy, if I was pulled over at a roadblock to check 

on safety inspection and I had all the latest airbags and a shoulder 

harness, technically the officer could write me a ticket because I 

don’t have the old-fashioned lap belt. 

Mr. BRATTON. Well —— 

Mr. GRIFFITH. Is that a fair assessment? Go ahead and tell me 

what the difference is. We do have a TV camera here. I would like 

you to show the TV folks the four-point harness so they can underVerDate Aug 31 2005 09:59 Sep 03, 2013 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 C:\DOCS\82336.TXT APRIL
44 

stand how safe this is who might see this at a later date or who 

might be looking at the Congressional record at a remote location. 

Mr. BRATTON. This is the safety harness that we were written a 

citation for. 

Mr. MICA. We are not going to be able to hear you. 

Mr. BRATTON. I am sorry. 

Mr. MICA. No problem. We want you to describe it so we have 

it in the record. 

Mr. BRATTON. This is a safety harness that Wake Stone was 

cited for as being defective. 

Mr. Massey, would you approach and show them the defect that 

we are still fighting? 

It is not very obvious. 

We also contacted the manufacturer of this harness and asked 

them if this harness was safe to use, and they issued a written letter stating that this —— 

Mr. MICA. So the frayed end is this —— 

Mr. BRATTON. Yes, sir. 

Mr. MICA.—is what you were cited on? 

Mr. BRATTON. Yes, sir. 

Mr. MICA. It is similar to the seat belt? 

Mr. BRATTON. Yes, sir, but not as frayed. 

Mr. MICA. Thank you. I appreciate that. 

Mr. BRATTON. And with the analogy with the car, it is hard to 

say. It is just like Mack said where you have a turn signal that 

blinks too slow, or they may say that that airbag that you have is 

in the wrong place, or that maybe you turned your seat belt or 

whatever. That is a citation. 

Mr. GRIFFITH. And here is where it gets interesting. As I told you 

all in the beginning, I used to be a criminal defense attorney. If an 

officer and a sheriff—the laws may be a little bit different in North 

Carolina, but if an officer pulls somebody over because they have 

a faulty exhaust system that is not built to the manufacturer’s 

specs and you can establish that it was, in fact, built to the manufacturer specifications, a criminal defendant, everything from that 

point forward, at least in the Commonwealth of Virginia, any other 

evidence, if that was the reason for the stop, would be restricted. 

So what we are saying is that we have folks who are trying to 

provide jobs in the community. We hold them to a standard that 

is higher than we are holding standards when you have due process in the criminal courts. So you are being treated worse than the 

criminals are. Is that correct? 

Mr. BRATTON. That is correct. Yes, sir. 

Mr. GRIFFITH. And that would be my opinion, as well. I will tell 

you that, you know, when you hear these stories—and I have heard 

these stories in Virginia, too. One that I have heard, and it was a 

coal mine, they must have 10,000 rollers on a conveyor belt, and 

one of the mines got cited because they had one roller that wasn’t 

rolling properly out of the 10,000-some rollers. It didn’t create any 

safety effect whatsoever. 

I will also tell you that while there was no citation, I believe, 

written, I was out talking to some miners on a parking lot, and I 

have had the mine safety training, but one of the folks with me 

had not had the mine safety training, and somebody spotted comVerDate Aug 31 2005 09:59 Sep 03, 2013 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\82336.TXT APRIL
45 

ing up the road the MSHA folks. All of a sudden we were being 

hustled off in a car because—we are not going in the mine, mind 

you. We were just standing in the parking lot. But there was a fear 

that standing in the parking lot without having had the mine safety training class could get that mine cited as a violation of safety 

rules, and all we were doing was talking. 

And I can tell you that words can be very powerful, but I don’t 

believe they can call it a mine safety problem when you are just 

standing in the parking lot talking issues. Would you agree that 

that is fairly typical of some things that you all are hearing? 

Mr. BRATTON. Yes, sir. And also, whoever saw the MSHA vehicle 

and told you that MSHA was coming is in violation because that 

is advance notice. 

[Laughter.] 

Mr. GRIFFITH. I am glad I didn’t say where I was exactly. 

And, Mr. Bratton, in this era of scarce resources, is it your opinion that MSHA is spending most of its money in enforcement rather than attempting to instruct and train operators? 

Mr. BRATTON. Yes, sir. I believe that to be a fact. 

Mr. GRIFFITH. And I will tell you sometimes it is frustrating because I am told that 5, 10 years ago, when operators would come— 

and most of my folks are coal, and we do have aggregates in the 

district—that somebody would say, ‘‘Hey, you need to get this 

straightened out,’’ or in the case of the harness, ‘‘It has gotten a 

little frayed, it isn’t a problem now, but make sure you keep an eye 

on that,’’ and there wouldn’t be a citation written, or there might 

be a warning written but it was down the road before you started 

getting fines, and my understanding is now, at least from the folks 

who talk to me in my district, that they are quick to fine and very 

rarely do they say, hey, keep an eye on this, or drive a little slower, 

or get that one roller fixed. 

Mr. BRATTON. My understanding is that if they see something 

that could be interpreted as a violation, that they are required to 

write that citation. So the inspectors have no leeway to advise on, 

okay, I see this, this could be a problem down the road, let’s take 

care of it. 

Mr. GRIFFITH. Mr. Chairman, if I might take another minute. I 

know I am over time, but if I could take a minute just to pontificate. 

[Laughter.] 

Mr. GRIFFITH. One of the problems I think we have in our federal 

system, and it is creeping into the state systems as well, historically the law was established to promote law and equity, and equity was doing what was fair, even if you didn’t meet the black letter of the law; or if you violated the black letter of the law, if that 

interpretation was unfair in the circumstances, we gave our officials the authority to figure out, okay, wait a minute, that is not 

a fair interpretation. 

Starting at about the end of World War II, this country went 

away from that, and we are all looking at black letter. That is why 

the code volumes get bigger every year, because we are trying to 

do black letter. But my experience is you can’t black letter everything, and perhaps we need to reestablish the principles of equity 

that were founded in the Anglo-American jurisprudence system, 

46 

and by banning them, we are making the citizens no longer have 

confidence. 

And thank you, Mr. Chairman. I yield back. 

[Applause.] 

Mr. MICA. Technically under the rules of the committee, the only 

one that is really permitted to applaud for Mr. Griffith is your representative, Mr. Meadows. 

[Laughter.] 

Mr. MICA. So we are all out of order. 

[Laughter.] 

Mr. MICA. There may be additional questions that we will have. 

Does anyone have any last-minute questions of the panel? 

[No response.] 

Mr. MICA. Witnesses, I will advise you that we may submit additional questions to which we would ask you to respond, and your 

responses will be made part of the record. 

I thank you for coming out this morning. 

Mr. MEADOWS. I am sorry. Would you yield? 

Mr. MICA. I am sorry. I would be glad to yield to the gentleman. 

Mr. MEADOWS. I just wanted to again say thank you. The other 

that I would ask you for the record that we have a few days here, 

if you will give us additional examples from perhaps other people 

that were not here today. Mr. Bratton, you are probably in the best 

position to do that, to submit for the record other examples of 

where we feel like we have had unfair citations. That would be 

very helpful. 

Mr. MICA. And we would welcome that. And the record is open 

for seven days. If necessary, we can extend that through your representative, Mr. Meadows. He will make certain that that submission is part of what is referenced in the record today. 

So, with that, I will thank you again, Mr. Stoll, Mr. McNeely and 

Mr. Bratton, for your participation and your testimony today. So, 

you are excused. 

I will call up the second panel. The second panel consists of one 

witness. That individual is Mr. Marvin Lichtenfels, and he is the 

Deputy Administrator for Metal/Nonmetal, Mine Safety and Health 

Administration. 

While the staff changes the witness table, I will welcome Mr. 

Lichtenfels. If you would just remain standing, sir, it is part of our 

process as an investigative panel to swear in our witnesses. Will 

you raise your right hand? 

[Witness sworn.] 

Mr. MICA. Let the record reflect that the witness answered in the 

affirmative. 

I would like to welcome you, sir. Your position is the Deputy Administrator for Metal/Nonmetal Mine Safety. Welcome to you. 

Since you are the only witness for this panel, you have some leeway as far as time and providing your testimony. As I advised the 

other witnesses this morning, additional information or testimony 

you would like to be part of the record, you can request that 

through the Chair. 

So, with that, welcome, and you are recognized. 

47 

STATEMENT OF MARVIN LICHTENFELS, DEPUTY ADMINISTRATOR FOR METAL/NON–METAL, MINE SAFETY AND 

HEALTH ADMINISTRATION 

Mr. LICHTENFELS. Thank you. Chairman Mica and members of 

the subcommittee, I appreciate the opportunity to be here today to 

testify about metal/nonmetal mine safety and health and the actions MSHA and industry have taken to protect the safety and 

health of the nation’s metal and nonmetal miners. 

Let me say at the outset that we at MSHA take the concerns of 

the metal/nonmetal industry very seriously. 

Mr. MICA. Sir, they are going to try to get that a little bit closer. 

Thank you. 

Mr. LICHTENFELS. We want to maintain and build on our history 

of working together to improve mine safety. What we are doing at 

MSHA, as well as the mining industry, is moving mine safety in 

the right direction. Compliance is improving in the nation’s mines 

and, most importantly, mine safety is improving with back-to-back 

years of the lowest injury and fatality rates in mining history. 

MSHA has engaged in substantial outreach to metal and 

nonmetal stakeholders in all areas of the country, including meeting with aggregate associations in North Carolina, Virginia and 

Florida to discuss issues of mutual concern and identify solutions 

that will benefit the mining community. 

We understand that our working relationships like forming alliances with aggregate associations and others to work together. 

As far as the agency’s outreach, MSHA has changed the way it 

rolls out safety and health initiatives. We involve our stakeholders 

and conduct outreach and training in advance of implementation. 

We post training on our website so that industry has access to the 

same training that MSHA inspectors can see. 

This year is the 35th anniversary of the Federal Mine Safety and 

Health Act of 1977 which provides the same protection to metal 

and nonmetal miners that coal miners enjoy as a result of the Federal Coal Mine Health and Safety Act of 1969. This act has been 

successful. In 1977, 134 metal and nonmetal miners lost their lives 

in their workplaces. By 2012, the number had fallen to 16, equaling 

the record low that was set in 2011. 

While we have made significant progress since 1977, too many 

metal and nonmetal miners are still being injured and losing their 

lives in preventable accidents. So far this year, there have been 

nine fatalities at metal and nonmetal mines. 

With input from our alliance partners, MSHA has taken several 

actions to reduce fatality and injury rates even further. These include Rules to Live By, initiated in 2010, which focuses on the most 

common mining deaths and how to prevent them, Guarding 1 and 

2 to reduce violations of MSHA’s guarding standard, and a policy 

letter MSHA published, clarifying MSHA’s fall protection standard. 

MSHA has renamed the Small Mines Office the Small Mines 

Consultation Bureau, which has refocused its efforts to better assist small mines and work with the aggregate association to identify those in need of the program’s services. This office provides 

courtesy inspections and on-site visits to explain MSHA’s initiatives and help operators understand and better comply with MSHA 

rules and regulations. 

48 

To improve consistency in the application and enforcement standard, MSHA has strengthened its inspector training programs, including implementation in 2010 of a new training program for field 

office supervisors. MSHA has added a course for inspectors and supervisors on professionalism and consistency to address concerns 

raised by mine operators. 

In January, 2012, the agency implemented pre-assessing conferencing, giving the operators the opportunity to resolve issues prior 

to conducting citations. In 2012, MSHA conferenced over 2,000 

metal and nonmetal citations. To date, 67 percent of those citations 

have been resolved without litigation. These efforts have been successful. Metal and nonmetal total citations are down 18 percent 

from 2010 to 2012. 

In 2011, the all injury and fatality rate in metal and nonmetal 

mines was the lowest reported in mining history. Preliminary data 

for 2012 show these rates have declined even further. Nonetheless, 

one mining death is one too many, and MSHA’s metal and 

nonmetal program area will continue to do whatever it can, working with the industry, to reduce the number to zero and to keep 

miners healthy and safe. 

Thank you for the opportunity to be here today, and I would be 

happy to answer your questions. 

[Prepared statement of Mr. Lichtenfels follows:] 

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Mr. MICA. Well, thank you. I will start with some questions. 

You have heard, again, some industry representatives say sort of 

the inconsistency with which they imposes fines and penalties and 

the lack of a sort of standard interpretation of the requirements. 

Would you like to respond in general or to any of the specific instances that were cited? 

Mr. LICHTENFELS. In general, sir, I would like to say that there 

have been inconsistencies and we are trying to address those in a 

number of ways. I mentioned the guarding and fall protection particularly. 

Mr. MICA. When was that? 

Mr. LICHTENFELS. Regarding PowerPoint, I mentioned —— 

Mr. MICA. You had said that you had some programs, I guess, 

to try to get the standards, standard equity in training your MSHA 

inspectors? 

Mr. LICHTENFELS. Right. We developed training programs on professionalism. 

Mr. MICA. Tell me about those. Are some of them the most recent, or what is the history? 

Mr. LICHTENFELS. It started in 2010 and 2011, and we expanded 

it to include professionalism. Our supervisors attend training every 

two years. Our inspectors receive training every two years. 

Mr. MICA. It is a little hard to hear you. Does that thing extend 

any further, or maybe you can come up closer to it? 

So, you have heard the complaints. And again, no one benefits 

by anyone being injured, and certainly not by a fatality, and I am 

sure the cost of a fine is miniscule compared to loss of life and the 

costs incurred when something goes wrong. However, these nine fatalities that you have cited, had these companies previously—do 

you know if they had been cited, and were there any instances of 

safety violations that were cited in the nine fatalities that led to 

their deaths? 

Mr. LICHTENFELS. Yes. Without having the specifics, there were 

citations issued in these situations. 

Mr. MICA. But, I mean, had you—a citation was issued after the 

death. 

Mr. LICHTENFELS. Right. 

Mr. MICA. I was wondering if, through your inspection, you had 

identified a situation that would have—or any of these folks were 

guilty of a violation before the fatality. Was the system working, 

and then someone didn’t adhere to your recommendation or your 

citation? 

Mr. LICHTENFELS. I don’t have that information, but I can —— 

Mr. MICA. For the record, if you could provide that to the subcommittee. 

The other issue, the lawyers touting the 35 years, have you 

heard also—in fact, the gentleman sitting in the same seat there, 

Mr. Stoll, and others said that the law is out of date. Would you 

concur with that? One. 

And then, two, has the administration or the agency recommended to Congress, or have there been any attempts recently 

to update the statute? 

59 

Mr. LICHTENFELS. The standards are continually reviewed. The 

rulemaking process is a long and tedious effort. The one effort that 

we made recently was fall protection. 

Mr. MICA. That is a rule. I am talking about statute. Quite specifically, one of the provisions of statute was cited as out of date 

according to modern technology or equipment. 

Mr. LICHTENFELS. I believe Mr. Stoll was talking about fall protection standards? 

Mr. MICA. Yes. 

Mr. LICHTENFELS. Yes. That is what I was going to say that we 

addressed by policy letter, and what we did —— 

Mr. MICA. But again, we have four members of Congress here. 

We change the law. The law was written in 1977. Has the Mine 

Safety Administration or the Obama Administration, or prior to 

that the Bush or somebody, have they recommended changes to 

Congress in the law that you are aware of? 

Mr. LICHTENFELS. No. No, sir, not that I am aware of. 

Mr. MICA. Well, again, I think one of the things we are going to 

do from this hearing—these hearings are nice, but if you don’t do 

anything to follow up, short of a lot of rhetoric. So I will ask Mr. 

Meadows to head up an ad hoc group to bring together—I think we 

are going to have to bring in labor folks. Mr. Meadows’ staff tells 

me that the Labor Committee would oversee the authorization of 

that law. 

But I think we are going to look at trying to get from the administration—I don’t care which administration it is. But if there are 

problems with the law, or the law is 35 years old, it needs to be 

updated, and they should provide the leadership to give us some 

recommendations. 

And then also, the committee of jurisdiction, we will ask them if 

they would consider—probably technically, if they won’t do it, then 

we can do a joint one, or we could do it ourselves, is follow up in 

Washington and drag the administrator in and some of the other 

folks and see. I will have to find out where they have attempted 

to do any changes in the law. 

How long have you been with them? 

Mr. LICHTENFELS. Five years. 

Mr. MICA. Any attempt that you know of? 

Mr. LICHTENFELS. No major attempt. 

Mr. MICA. All right. Well, maybe this will spark or be the genesis 

for looking at the law itself. 

How many inspectors do you all have? What is your budget? 

Mr. LICHTENFELS. Metal/nonmetal has about 350 inspectors total, 

about 600 FTE. 

Mr. MICA. Three hundred and fifty inspectors? 

Mr. LICHTENFELS. Yes. 

Mr. MICA. And what is your budget? 

Mr. LICHTENFELS. The budget was approximately $9 million 

prior to sequestration. 

Mr. MICA. Now, I saw 143—was that metal and coal? $154 million in 2011, $154 million in fines. 

Now, what is nonmetal? Do you know? 

Mr. LICHTENFELS. I don’t have it with me, sir. 

Mr. MICA. But most of that is in coal? 

60 

Mr. LICHTENFELS. Um —— 

Mr. MICA. Okay. So you don’t know how much was collected in 

fines? 

Mr. LICHTENFELS. No. I don’t have that data. 

Mr. MICA. Do you know from last year? 

Mr. LICHTENFELS. I don’t have it with me. 

Mr. MICA. It is interesting. One fellow here said $143,000 in 

fines to that one company, and I am sure that that is just part of 

the cost because they probably had to retain counsel or in-house 

counsel and the time spent appealing. 

You had cited 3,000 citations. What year was that in? 

Mr. LICHTENFELS. That was in 2012. 

Mr. MICA. In 2012? 

Mr. LICHTENFELS. Two thousand citations that were accomplished, I believe. 

Mr. MICA. Two thousand citations in 2012, and you don’t know 

how much the fines were. You said 67 percent were what? 

Mr. LICHTENFELS. Settled without further litigation. 

Mr. MICA. So were they all litigated or contested? 

Mr. LICHTENFELS. No, no. Those were —— 

Mr. MICA. Some people just pay up and give up, give up and pay 

up? 

Mr. LICHTENFELS. Right; yes. Yes. 

Mr. MICA. Sixty-seven percent, I am really curious about the figure. Please provide that to the committee, and the total fines for 

2,000. I am just curious as to what the average fine was and was 

there a category of lead fines and violations of the 2,000? 

Mr. LICHTENFELS. The standard most frequently cited? 

Mr. MICA. Yes, right. What is the violation most —— 

Mr. LICHTENFELS. Typically, electrical violations. Guarding used 

to be number one. 

Mr. MICA. What? Guarding? 

Mr. LICHTENFELS. Guarding used to be the number-one cited 

standard. 

Mr. MICA. I am sorry. I didn’t, again, understand you. Guardian? 

Mr. LICHTENFELS. Guarding violations. 

Mr. MICA. Guarding? 

Mr. LICHTENFELS. Yes. 

Mr. MICA. Guarding the —— 

Mr. LICHTENFELS. Conveyor belts, guarding of conveyor belts to 

prevent accidental contact. 

Mr. MICA. Oh, okay. It is an actual guard? 

Mr. LICHTENFELS. Yes. 

Mr. MICA. Okay. And that was one, actually, that was cited quite 

a bit by the panelists as you all not having consistent standards. 

Mr. LICHTENFELS. Yes. 

Mr. MICA. So the highest violation in the past has been on an 

infraction for which you don’t have the standards. Is that what you 

are testifying? 

Mr. LICHTENFELS. What I would like to say, Mr. Chairman, is 

that in 2010 we developed a PowerPoint to provide guidance to industry, and it was in cooperation with the industry, the National 

Stone, Sand and Gravel Association and a number of other associations, and we put the first PowerPoint out on guarding conveyors, 

61 

and we followed it up in 2012 with a second PowerPoint on guarding everything else. And since that point, the guarding violations 

are down 40 percent. So the effort was successful. 

Mr. MICA. So there has been—that is no longer your primary violation? 

Mr. LICHTENFELS. Right. 

Mr. MICA. I think what you heard here today was a plea for some 

consistency and common sense. The other thing, too, is you do 

not—instead of fining them, do you not write them a warning or 

something and say—like this belt that they showed, we had one 

belt on the screen and the other one from a harness that they 

brought here. If it appears to be fraying, can you say, ‘‘In 30 days 

correct the situation or you will be fined’’? I mean, do you approach 

it from a standpoint of having them actually take some action, or 

is this just fine city, where you come in and levy the fine? 

Mr. LICHTENFELS. The Mine Act requires an MSHA inspector to 

cite a violation if he sees it. 

Mr. MICA. The what? 

Mr. LICHTENFELS. The Mine Act requires an MSHA inspector to 

cite —— 

Mr. MICA. Is that your interpretation, or is that —— 

Mr. LICHTENFELS. Yes, it is. Yes. 

Mr. MICA. Well, see, there again, I think that —— 

Mr. LICHTENFELS. If I could answer —— 

Mr. MICA. The law—we might want to look at that. I am not as 

familiar with MSHA. I don’t have mining that I know of in my district. I would have to check with the CIA on that. 

[Laughter.] 

Mr. MICA. In any event, just a sort of commonsense approach. I 

remember my dentist, who has since passed away, probably from 

dealing with OSHA. But I went in one day to get my teeth cleaned 

or something, some torture he did to me, and he shows me a bottle 

of Whiteout. He had gotten fined with OSHA for having this chemical, a bottle of Whiteout on his desk. We went to town on that one. 

I thought we had changed some of the procedures for OSHA to give 

some warning. Maybe we need to go back and look at your agency. 

So three guys show up at one plant? Is this the nonmetal, your 

350? 

Mr. LICHTENFELS. Yes, yes. 

Mr. MICA. And how many mines do the 350 cover? 

Mr. LICHTENFELS. Slightly over 12,000 mines. 

Mr. MICA. Twelve thousand? So they try to visit once or twice a 

year? 

Mr. LICHTENFELS. The Mine Act requires underground mines to 

be inspected four times a year and surface mines two times a year. 

Mr. MICA. Four and two. And you are meeting that? 

Mr. LICHTENFELS. Yes. 

Mr. MICA. Okay. And they show up in pairs of three sometimes? 

Is that customary? 

Mr. LICHTENFELS. That wouldn’t be customary, no. Normally it 

is one —— 

Mr. MICA. I know that sounds kind of rude, rude to show up to 

someone who hasn’t had any fines. We heard that testimony today. 

Have you heard that incident, where three show up and say, you 

62 

guys haven’t been fined, we are going to find something, and then 

harass them? 

Mr. LICHTENFELS. No, I was not aware of that. 

Mr. MICA. Do these guys, the operators, have some ability to— 

not whistle blow, but to let the agency know that there are people 

who are exceeding reasonable approaches to enforcement? 

Mr. LICHTENFELS. We have formed alliances with a number of 

state associations, and we ask —— 

Mr. MICA. But someone overseeing the 350, or you, is the only 

thing for them to do is call you up anonymously and say they busted our chops and they are just not being fair? How does someone 

say that there are poor performers? I mean, you probably have 325 

of these guys who are doing their job every day, minding their P’s 

and Q’s, but it sounds like you have some people who are harassing 

folks unduly. Is there an appeals process or some way that they 

could whistle blow? 

Mr. LICHTENFELS. There is no formal process, but we do get 

phone calls and emails and letters, and we respond —— 

Mr. MICA. I think that is another thing, Mr. Meadows, when we 

are looking at revising the law—I mean, the reference would tell 

us that every dog has his day in court, but it doesn’t sound like 

every mine operator has a fair process. 

Mr. LICHTENFELS. There is a formal process for contesting a violation. 

Mr. MICA. But that is not what I am talking about. That sounds 

like it is fairly expensive. Also, I would like to see some resolution. 

Maybe we can get these things over in a hurry. I think the first 

thing is the responsibility needs to be changed just from the enforcement. I could see a certain kind of violation where they would 

be cited and fined immediately, but others in which there is some 

ability to correct the situation, and then a fine imposed if they 

don’t comply. 

So I think we need to go back and look at the whole law and 

make it make a little bit more sense. I would like to see the recommendations, and I think we could convene with some of your 

folks, too. 

The other thing, too, is I heard that there are international 

standards? 

Mr. LICHTENFELS. Yes. 

Mr. MICA. And you all comply to international standards, I imagine. And then you go above and beyond that for U.S. standards. 

Would that be a fair description? 

Mr. LICHTENFELS. There are consensus standards such as the 

National Electric Code, the ISO standards, and various other 

standards. The mine standards took those into consideration when 

they were drafted, but they were drafted in the mid-1980s. Most 

of them accept the prior standards that were in effect from years 

before that. 

Mr. MICA. And again, I think it is important that that be updated. On mine standards, is there like an international—I don’t 

know. Again, I am learning. Is there an international mine safety 

standards panel within whatever it is? 

Mr. LICHTENFELS. There are some international committees. 

Mr. MICA. Do we belong? 

63 

Mr. LICHTENFELS. We participate, yes. 

Mr. MICA. And also for the record, maybe you could tell us the 

last participation, find out from your folks what our participation 

level has been, and it would also be interesting where we differ, 

where the United States has different standards from the international, because it sounds like even the manufacturers are having 

difficulty getting standards out of your agency. Again, the best 

practices, that is what we want, or the best configuration of equipment. 

Mr. LICHTENFELS. If I could address two of those issues, the fall 

protection was an example of what we did to try to clarify a standard. Many of our standards are considered performance standards 

where the operator finds the best way to comply with the standard, 

and then the inspector shows up and decides whether it meets our 

standards. It is difficult because it is not specific in many cases. 

But we give the operator leeway to try to comply with it. 

One of the problems with the fall protection standard that was 

read this morning was that it didn’t have a number of what height 

there was a danger of falling from. It just said where there is a 

danger of falling. So we enlisted the industry, the inconsistency 

problem, what is a hazard, what is not a hazard, and we by policy 

letter adopted a portion of the OSHA standard that said anything 

above 6 feet is a hazard and needs to have fall protection. I think 

it was well-received by industry, that they now had a number that 

they could comply with and at least made it a little more clear, and 

we tried to do that with fall protection, and we tried to do the same 

thing with the guarding PowerPoints, and I think that has been 

well-received by industry. Our hope is to continue to do that as 

these issues come up. 

Mr. MICA. Thank you. 

Mr. Meadows, our Vice Chairman, go ahead. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

And I understand that you are not the one who is doing these 

inspections. I saw you over there writing copious notes. Is there 

anything that alarms you today about what you have heard here 

from our three previous witnesses? 

Mr. LICHTENFELS. Well, I am concerned about the inconsistencies, and if three people showed up for that purpose, I am a little 

concerned about that, and I will look into that. 

Mr. MEADOWS. But it is not just the three people because we 

had—I mean, the majority of the people here stood up and said the 

same thing. 

Mr. LICHTENFELS. Yes. 

Mr. MEADOWS. So, inconsistencies. So how do you, as a deputy 

administrator, plan to change that? 

Mr. LICHTENFELS. Well, I think we are making some headway. 

I believe that, with the training that we have put in place, there 

have been fewer complaints. 

Mr. MEADOWS. In your budget you say training, but your budget—and you had renamed something to talk about how you were 

going to train, and I think in your testimony you talk about renaming it, but your budget doesn’t reflect a training emphasis. It reflects an enforcement emphasis. So why would your budget not 

match with your testimony? 

64 

Mr. LICHTENFELS. What I am referring to is training our own inspectors. 

Mr. MEADOWS. Oh. So you are going to support training for your 

inspectors? 

Mr. LICHTENFELS. No. No, sir. We have been training our inspectors. We ask them to get 48 hours of training every two years. 

Mr. MEADOWS. To write better citations? What do you do? 

Mr. LICHTENFELS. To promote consistency, to understand the 

standards. We go over a large number of subjects. 

Mr. MEADOWS. So do you give them raises based on how consistent they are? 

Mr. LICHTENFELS. No, sir. That is not the way —— 

Mr. MEADOWS. So they could be inconsistent and still get a raise. 

Mr. LICHTENFELS. They get evaluated by their supervisor based 

on their performance. 

Mr. MEADOWS. So that performance is based on how many citations they write? 

Mr. LICHTENFELS. No, sir. 

Mr. MEADOWS. So what is your matrix for evaluating their performance? 

Mr. LICHTENFELS. Do they complete their inspections. 

Mr. MEADOWS. So as long as they do two inspections on surface 

mines —— 

Mr. LICHTENFELS. That is only part of it, sir. There are reports 

they have to complete, and the citations —— 

Mr. MEADOWS. That is what I am trying to understand. I mean, 

how do you evaluate whether they are doing a good job or not? 

Mr. LICHTENFELS. The procedure is the supervisor in the field offices reviews everything that is written by an inspector. 

Mr. MEADOWS. So he reviews the citations that are written by 

the inspector? 

Mr. LICHTENFELS. Yes, and he travels with that inspector at 

least once a year, but in most cases more often, to evaluate their 

performance in the field. 

Mr. MEADOWS. Is there a slide? Can you put up that slide? 

This slide indicates a downward trend from 2000 to 2012 in 

terms of the incident rate on aggregate operations. And you can see 

it was trending down, and then all of a sudden what we saw is in 

about 2007 a huge spike in fines. There didn’t seem to be really 

any correlation between fines and safety according to this particular one. It looks like fines went up 300 percent, and yet there 

is no correlation. Can you explain why that is? 

Mr. LICHTENFELS. Part 100, which determines how a penalty is 

assessed. 

Mr. MEADOWS. What was that? 

Mr. LICHTENFELS. Part 100, 30 CFR Part 100. That is the standard that determines how a citation—what—the assessment for a citation. That was revised in 2007. 

Mr. MEADOWS. Who revised it? Congress didn’t revise it; is that 

correct? 

Mr. LICHTENFELS. MSHA revised the standard. 

Mr. MEADOWS. So that is something that you —— 

65 

Mr. LICHTENFELS. That was based on following the 2006 disasters that occurred, and Congress felt that the penalties may not 

have been high enough. 

Mr. MEADOWS. But we see Congress was wrong there. I mean, 

I know that comes as a shock to everybody. 

[Laughter.] 

Mr. MEADOWS. But if you are saying that Congress said there is 

a direct correlation with fines, this chart would say that there is 

not. Do you agree with that? 

Mr. LICHTENFELS. It certainly looks that way. 

Mr. MEADOWS. Why don’t we go back to the pre-2006 way of 

doing business? You know, we are losing jobs here. It boils down 

to we may get to zero fatalities. The way that we get to zero fatalities is if we have zero jobs, we will get there. I mean, that is how 

you get there. 

So my concern is that for every time we make burdensome regulations, it means, as my colleague from Virginia pointed out, it 

means jobs going to China, and we can’t afford any more jobs going 

to China. Do you believe we can afford any more jobs going to 

China? 

Mr. LICHTENFELS. Jobs are very important, sir. 

Mr. MEADOWS. So you wouldn’t be in favor of anything that 

sends more jobs to China? 

Mr. LICHTENFELS. No. 

Mr. MEADOWS. Okay. So let’s go back to the citations, then. So 

if we went back to the 2006 way of doing citations, do you see that 

making any effect really in terms of anything? Because it is 

trending down anyway at this point. 

Mr. LICHTENFELS. If I could say that MSHA is in the process of 

revising Part 100. It has been sent over —— 

Mr. MEADOWS. To make it worse, or better? 

[Laughter.] 

Mr. LICHTENFELS. It will be put out for comment. OMB is reviewing it. It will be put out for comment, and then —— 

Mr. MEADOWS. Okay. Is there a matrix today where if I had a certain kind of violation, I know that I am facing a $1,000 fine? 

Mr. LICHTENFELS. It can be determined through Part 100, yes. 

Mr. MEADOWS. So there is a matrix. You could give me this thing 

that says that if I have a seatbelt that is frayed, I know exactly 

what the charge is going to be. I don’t believe that —— 

Mr. LICHTENFELS. It could be provided, yes. 

Mr. MEADOWS. What do you mean, it could be provided? Has it 

been provided to all of these guys here? 

Mr. LICHTENFELS. There is a point system that is used for the 

assessment process that is based on the history of previous violations at a mine. 

Mr. MEADOWS. Okay, that hits on another area, the history of 

previous violations. We heard testimony earlier from the Association where they talked about that it is easier to just pay some of 

the fines. The problem with paying the fines is that when you do 

that, you now have a history of violations. So it requires them to 

hire litigation to go after defending themselves on some of the ridiculous stuff we have seen here today, because if they don’t, then 

they are what you would call an habitual violator, and that is not 

66 

fair. Instead of just saying we are going to make you have to defend yourself because, if not, we are going to come back and we are 

going to penalize you greater. Is that true? 

Mr. LICHTENFELS. History is considered as one of the factors. 

Yes, sir. 

Mr. MEADOWS. So it is true that if I don’t appeal, that you are 

going to consider me a violator. 

Mr. LICHTENFELS. The assessment is based on history. 

Mr. MEADOWS. Either way, it is a problem, as the Chairman has 

pointed out. Either way, it is a real problem. So when we see this, 

you are saying it is open now for comment. Comment from who? 

OMB is looking at it. Comment from the guys that you are fining, 

or comments from the 350 people that are working for you? 

Mr. LICHTENFELS. No, that is for public comment. 

Mr. MEADOWS. So who has been noticed at this point for this 

public comment from OMB? 

Mr. LICHTENFELS. I’m sorry? 

Mr. MEADOWS. Who has received the notice to make comments? 

Mr. LICHTENFELS. It has not reached that stage yet, sir. 

Mr. MEADOWS. Okay. So —— 

Mr. LICHTENFELS. It is the same review, and then there will be 

a proposed rule, and then there will be —— 

Mr. MEADOWS. So what is the causal point of why it is being reviewed? I mean, who decided that we are going to review that? 

Mr. LICHTENFELS. I don’t know that. 

Mr. MEADOWS. So, your boss? 

Mr. LICHTENFELS. Somebody higher than me. 

Mr. MEADOWS. Somebody higher than you decided. And what 

was the causal reason why you are reviewing that? 

Mr. LICHTENFELS. I don’t know. 

Mr. MEADOWS. Can you get that to this committee? 

Mr. LICHTENFELS. Yes. 

Mr. MEADOWS. Okay. I want to finish up, and I appreciate the 

Chair’s indulgence. Let me finish up with just a couple of more. 

You mentioned PowerPoints, that you have come out with a few 

PowerPoints. Are those PowerPoints, if the miners follow those 

PowerPoints, you can assure us that there are not going to be citations with violations there? 

Mr. LICHTENFELS. I would hope so. 

Mr. MEADOWS. You would hope so. 

Mr. LICHTENFELS. Yes. 

Mr. MEADOWS. So will you, for the record, today say if they follow those and they get citations, that your agency will waive that? 

Will you say that for the record today? 

Mr. LICHTENFELS. I will say if they follow that PowerPoint, they 

should not receive a citation. 

Mr. MEADOWS. I understand ‘‘should not.’’ But that’s different. 

They should not have gotten some of the citations they have already gotten, in my opinion. What I am asking you is would you 

waive those and just concede that those are out of line? 

Mr. LICHTENFELS. If they brought that PowerPoint in to prove 

their point, we would certainly consider that, sir. 

Mr. MEADOWS. I will tell you, this is very frustrating just to hear 

what we are hearing. We are talking about people’s lives. We are 

67 

talking about jobs. We are talking about putting people out of 

work. 

I want to finish with this last. You said that under MSHA, that 

you were required to write a citation. I have read through reams 

of this. Some people say that I just can’t sleep, so I read all this 

crazy stuff, but it is your interpretation that it requires a citation. 

It sounds like there is a whole lot of discretion, because when I 

read it, it doesn’t look like it requires a citation. My interpretation 

would be different than yours. Are you sure that the law says that 

you have to write a citation? 

Mr. LICHTENFELS. That is our interpretation. 

Mr. MEADOWS. Well, let me show you how unfair that is. 

Mr. LICHTENFELS. You have to observe a violation before you 

write it up. 

Mr. MEADOWS. Okay. That safety belt that is here, is the safety 

belt still here? Show that to the gentleman, because I know he 

didn’t get to see it. Be careful, because you may trip over an MSHA 

violation right there. 

[Laughter.] 

Mr. MEADOWS. So is that something that you believe should have 

been cited? 

Mr. LICHTENFELS. If Mr. Bratton said he had a letter from the 

manufacturer saying it was safe, I would think it should be okay. 

Mr. MEADOWS. So you are saying that it should have been cited, 

but —— 

Mr. LICHTENFELS. The inspector who observed it apparently felt 

that way, sir. 

Mr. MEADOWS. Okay, and that brings me to my closing thought. 

If we put all of the discretion in the hands of 350 inspectors, it depends on how bad of a morning they had. I can tell you, I would 

be wining and dining those guys, take them to dinner and making 

sure that they —— 

[Laughter.] 

Mr. MEADOWS. But it really depends on if they have a bad hair 

day on whether they are going to cite something. And with this 

particular thing, what you are saying is that if we get a letter that 

says that that is in compliance, that that citation should be what? 

Mr. LICHTENFELS. I would think we should have —— 

Mr. MEADOWS. I know what you think, but let me just ask you —— Mr. LICHTENFELS. If it was brought to my attention, I would see 

that it was vacated. 

Mr. MEADOWS. All right. So any problems that we have here in 

western North Carolina, should we be bringing them to your attention? 

Mr. LICHTENFELS. I would hope it doesn’t need to be that way. 

Mr. MEADOWS. We have heard multiple complaints today. Who 

do we go to? Because I will tell you, if I don’t get this fixed, I don’t 

have a job. 

[Laughter.] 

Mr. LICHTENFELS. The process is that we encourage all mine operators to do this, to discuss each situation with the inspector on 

the site, try to resolve it at that point. 

Mr. MEADOWS. But that doesn’t happen. 

68 

How many of you would agree that that happens on a regular 

basis, that the inspector on-site really tries to mitigate it and not 

write a citation? Does that happen? 

[Chorus of noes.] 

Mr. MEADOWS. So we have a problem maybe with the inspector 

just in my area, but I don’t think so because we have gentlemen 

from other areas here as well. 

I appreciate the Chair’s indulgence. I will yield back. 

Mr. MICA. Thank you. 

I recognize Dr. Roe. 

Mr. ROE. Thank you, Chairman. 

I think the Chairman brought up something a minute ago, that 

what we have done in this country is we have taken a set of laws 

and we have thrown the common sense out the window. 

Mr. Lichtenfels, I appreciate you being here. Let’s take you off 

the job you have and put you back in the real world where all these 

people that you see here are trying to comply, trying to make a living, and trying to have a safe workplace. You saw Mr. McNeely. 

I read the statistics in his workplace, years without a violation. 

Would you feel safe putting that harness on and doing anything? 

I would. Would you feel safe in that? 

Mr. LICHTENFELS. He says he got a letter from the manufacturer. 

[Laughter.] 

Mr. LICHTENFELS. I didn’t see the situation. Yes, sir, I would. 

Mr. ROE. Okay. Thank you. I would, too. I absolutely would. I 

would rappel off the fire tower on the Fourth of July. It is amazing 

what you will do for votes. 

[Laughter.] 

Mr. ROE. The belt that we saw was not unsafe, but what Mr. 

Meadows just got through saying is that businesses like ours, 30- 

something years, private businesses, cannot fight you people. We 

write the check, and then we have affirmed that we are not a safe 

workplace, so when you come back again, you find something and 

the fines go up. It is a Catch-22, and I think you have to put some 

common sense back in. You can sense my frustration, and I am 

putting you back in the private sector where you spent 20-something years. I know you did. 

Mr. LICHTENFELS. Yes, sir. 

Mr. ROE. And you would look at that and if you were working 

back where you were, you would be offended by this right here, and 

your frustration—you could try to run these businesses, and I applaud your effort at MSHA trying to make it safe for folks and 

clearly saying that a surface mine is safer than a deep mine, there 

is no question about that. We know what happened at the Big 

Branch Mine just a couple of years ago. 

The fatalities you mentioned, obviously zero should be our goal 

in the workplace. The gentleman who had a heart attack in Mr. 

McNeely’s shop, if he died on the spot, would that count as a fatality, a mine fatality? 

Mr. LICHTENFELS. Most likely not, sir. 

Mr. ROE. Okay. It would not, but it was a violation. He was removed, and that was considered an injury that day when he left. 

So at least fatalities are not medical things, if a diabetic had a 

problem or a medical —— 

69 

Mr. LICHTENFELS. Right. 

Mr. ROE. Okay, that helps me there. And how do you explain the 

safety record of MSHA versus the industry being higher? How do 

you look those folks in the eye and write them a citation? 

Mr. LICHTENFELS. Well, that is a good question, and we are taking that seriously, and we meet on a monthly basis at headquarters 

to review the issue. A large portion of those claims are hearing 

loss, so it is difficult. The rest are just strains and sprains, and we 

are certainly dealing with it. 

Mr. ROE. Okay. And how much of the money that you take in 

comes in fines? I think Mr. Meadows made a great point a minute 

ago about how like minds think, but I am thinking if you put a 

training video on the web, that is your video. Why in the world 

should they have to bring. It is yours. You created it, and if that 

is what you are supposed to follow, is it like the IRS, where if you 

follow my advice, you are still going to need? Because that is exactly what happens with the IRS, and that is one of the frustrations that the American people have. If they follow what they believe is the correct thing to do, shouldn’t they be okay? 

Mr. LICHTENFELS. Yes, sir. 

Mr. ROE. Okay. So if they follow those videos that are on the— 

the PowerPoints that you have on the web, I am hearing you right 

out here for the record, that should just be wiped off, cleaned off 

the slate. 

Mr. LICHTENFELS. We should certainly review that and discuss 

it. Yes, sir. 

Mr. ROE. Why does it need review? 

Mr. LICHTENFELS. Well, if we put a video out there, we should 

make sure that it is accurate. I agree. 

Mr. ROE. I totally agree with that, but if they follow one you put 

out —— 

Mr. LICHTENFELS. Right. 

Mr. ROE.—and the international standards of, let’s say, a company like Caterpillar, which was mentioned today, following those 

fall standards that are out there, if they know right now that that 

is a violation, how in the world do you match those two? 

Mr. LICHTENFELS. It is difficult. I understand that. I was in the 

industry for 43 years, and I do understand it. But the point is each 

situation has to be evaluated on a case-by-case basis. 

Mr. ROE. But if you follow the rules, which these people are, you 

shouldn’t have to be explaining to somebody why you follow the 

rules. It shouldn’t even be an issue. Do you agree with that? 

Mr. LICHTENFELS. Yes, sir. 

Mr. ROE. Does any of the fine money that they pay in the millions, tens of millions of dollars, go back into the training we have 

talked about for compliance? Where does it go? 

Mr. LICHTENFELS. The money goes to the Treasury. 

Mr. ROE. Treasury? 

Mr. LICHTENFELS. Yes, sir. 

Mr. ROE. Okay. So that would be something we would have to 

do legislatively. 

Mr. LICHTENFELS. Yes, sir. 

Mr. ROE. That is something we could look at. 

With that, I will yield back. 

70 

Mr. MICA. Thank you. 

Congressman Griffith? 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

Let me congratulate you on being here today. I know somewhere 

in some room in Washington, you drew the short straw. 

[Laughter.] 

Mr. GRIFFITH. And I do appreciate that. And I want to congratulate you on recognizing that there have been some problems and 

that you all are working on consistency. Your testimony here today, 

I understand you are in a tight spot, that you are trying to defend 

the policies that you didn’t necessarily make. But at the same time, 

it is hard for you to make blanket statements, ‘‘Yes, I will fix this,’’ 

when you may not have that authority to fix this or that, and I appreciate that. 

Understand, I am coming up with some tough questions here in 

a minute. 

[Laughter.] 

Mr. GRIFFITH. But I did want to get that out there because I 

think you have done a nice job with a difficult situation. 

And I also want to say that I think one of the problems that I 

hear about all the time—it hasn’t come up previously—which you 

are not an example of is that apparently there are a lot of inspectors being hired who have limited or no experience in the mining 

industry, and they are coming in after having either limited or no 

experience and becoming mine inspectors. And so I appreciate the 

fact that you do come from the industry, and I would just make 

that note that there are a lot of folks out there that are frustrated 

with somebody who might have six months in a mine, like some 

of the mine inspectors, and after they go through a training class 

they are out telling folks with experience like yours how to do the 

job that these folks have been doing very safely for a number of 

years. So I would just make that comment. 

Now, these questions that I am going to ask you are not directed 

at you personally, but they are tough questions, and I think we 

need answers to them. 

Do you know of or do you have any reason to believe that there 

is an official quota system with the MSHA fine and citation process? 

Mr. LICHTENFELS. We have made it clear there is no quota system. 

Mr. GRIFFITH. Is there any unofficial MSHA fine or citation system? 

Mr. LICHTENFELS. Did you say an MSHA quota system again? 

Mr. GRIFFITH. Yes, sir. I am asking you about unofficial. 

Mr. LICHTENFELS. No unofficial. 

Mr. GRIFFITH. Now, I am going to bore down into this a little bit 

further, because sometimes there can be no official or maybe not 

even a recognized unofficial system, but sometimes policies create 

a system even if the people who are creating those policies don’t 

intend to. A large police department somewhere in Virginia once 

created a system that they didn’t see as quotas at the time until 

a judge pointed it out to them that they had created a quota system. Here is what they were doing. If you wrote four tickets, you 

71 

got moved up the line to get the newest patrol car, and all the guys 

wanted the newest patrol car. 

So I want you to think about it and think about your answer. Is 

there any system where the people who get those—I saw that chart 

with the big spike. Is there any system whereby if you are writing 

more citations, that you are getting promotions, I know it wouldn’t 

be new squad cars but some kind of new equipment, a new car to 

drive, a newer car to drive? I mean, is there some kind of system 

that may not have intentionally been set up as a quota system but 

which could have the possibility of setting up a quota system because there are rewards to the inspectors for writing the citations? 

Mr. LICHTENFELS. None that I am aware of, sir. 

Mr. GRIFFITH. Can I ask you to go back and look and see if there 

are any systems whereby if you write more citations or you get 

more fine money in, one is that placed in your personnel jacket as 

to what your fines are and how many citations you write; and two, 

are there any side benefits to writing more citations that nobody 

really thought about? I am not accusing you of doing this intentionally, but they might have unintentionally created a bonus a reward system, in essence a quota system? Would you go back and 

check on that, and could you report back to the subcommittee on 

that? 

Mr. LICHTENFELS. Yes, sir. 

Mr. GRIFFITH. I would greatly appreciate that. Again, I did not 

mean that personally, but I have seen this happen sometimes unintentionally, because when you look at the Mine Safety Act, we can 

agree or disagree on whether or not you should write the citation. 

But when you see that chart, and I had not seen that chart before 

this point, it is pretty telling that from 1977 until whenever that 

spike was—let me see that chart again, that graph that you had. 

There you go. It looks like somewhere about 2005 to 2008, dealing 

with the same law, we had a major shift in policy. 

So if it isn’t that there is some kind of inadvertent bonus system, 

then there must have been a shift in the policies coming out of the 

administration of MSHA and something that MSHA may want to 

take a look at and that we may want to take a look at. But you 

would agree that that spike indicates that there must have been 

some kind of shift in policy. 

Mr. LICHTENFELS. There was a change in Part 100 in the assessment standards. 

Mr. GRIFFITH. And who was responsible for that? That was 

MSHA’s interpretation? 

Mr. LICHTENFELS. Yes, sir. 

Mr. GRIFFITH. Of some regulations? 

Mr. LICHTENFELS. Yes, sir. 

Mr. GRIFFITH. And just for the record, I don’t believe you were 

with the agency at that time; is that correct? 

Mr. LICHTENFELS. I started in 2008. 

Mr. GRIFFITH. Okay. So you didn’t have anything to do with that, 

and I appreciate that. 

Those are my concerns. I do appreciate the fact that you are after 

the consistency issue. I think it is more than just the guards. Anything that you can do in your position, having been in industry, to 

make these things make more sense so that people feel comVerDate Aug 31 2005 09:59 Sep 03, 2013 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 C:\DOCS\82336.TXT APRIL
72 

fortable. Everybody wants us to have mine safety, everybody. We 

are all in agreement on that. And what the operators across the 

board are saying is give us some consistency, let us talk to you 

about the policy, which I think you have indicated that you are 

open to. Let us talk about the policies and make sure the policies 

make sense, and then let’s have some consistent enforcement so 

that we are following the rules and we are following what we think 

is the speed limit sign that says 35, and we are driving at 35 and 

not being fined when we are driving at 35, and somebody tells us, 

well, it says 35, but we really meant 28. Can you do that for us 

and keep working on that? 

Mr. LICHTENFELS. Yes, sir. 

Mr. GRIFFITH. I appreciate that very much, and I appreciate this 

hearing, Mr. Chairman. I think it is extremely important that we 

had this. Congressman, thank you for bringing us to your district, 

and I yield back. 

Mr. MICA. Thank you. I do want again to thank Congressman 

Meadows for bringing this to my attention and making it his priority for the subcommittee and our committee’s power. 

Again, these hearings are nice, but we do need to follow up, so 

we will have a number of follow-up items. 

Is this the first time you have testified before a committee of 

Congress? 

Mr. LICHTENFELS. Yes, sir. 

Mr. MICA. Who is the administrator? 

Mr. LICHTENFELS. Neal Merrifield. 

Mr. MICA. I guess he regularly testifies? 

Mr. LICHTENFELS. I don’t know that he has either. Normally, it 

is the Assistant Secretary. 

Mr. MICA. Well, we will also contact the committees of legislative 

authorization and jurisdiction. I will ask Mr. Meadows to kind of 

lead that effort. There are two ways we can tackle this. The thing 

that concerns everybody is that people feel they have lost discretion 

in the way these fines are applied, and then trying to get common 

sense back into play, but I imagine those fines also cover coal? 

Mr. LICHTENFELS. Yes, I would guess. 

Mr. MICA. Okay. If you could get us that information, we will put 

it in the record because I think it is important. 

But I think follow-up is key to making a change in a law that 

is 35 years old that has been cited as part of the problem, and then 

trying to make certain that the folks are treated fairly, to have 

some due process, or just some process. 

Again, the goal is safety for workers in the workplace. We would 

like to get fatalities to zero, if that is at all humanely possible. We 

have made some progress, but in the meantime, again, some overregulation, over burden, we end up losing more and more jobs out 

of the United States and closing down industry and business and 

opportunity. 

So with that being said, again, we appreciate your coming forward today. We will follow up. 

Mr. Meadows, any closing comments? 

Mr. MEADOWS. No, just to thank you for coming. It is never fun 

to come. You knew when you came you were going to have to face 

the medicine, and I appreciate your willingness to do that. 

73 

I look forward to working with you to solve this issue. I believe 

that it is solvable. I heard testimony that what we want are safe 

mines. I know Mr. McNeely, and the people that work for him are 

his family. Some are literally his family, but they are his family, 

and that is what this is across the board. I see some of these guys 

and their family members, and they don’t want to operate in an 

unsafe environment. 

So we have two goals. They want to have safe mines. Let’s work 

together to make sure that we don’t put people out of business. 

With that, I just want to say thank you all, and I will yield back 

to the Chairman. 

Mr. MICA. With that, I thank the witnesses. I thank those who 

came out today to join us. I am particularly grateful to the community of Bakersville, and also Mitchell County for the use of these 

historic facilities at this rather historic hearing. 

There being no further business before the Subcommittee on 

Government Operations, this hearing is adjourned. Thank you. 

[Whereupon, at 12:16 p.m., the committee was adjourned.] 

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