implement the conference exist in, corporatewide holistic settlements and operator implementation of meaningful health and safety programs. msh prosecutors need more tools to investigate and punish wrongdoing. unlike other agencies, that enforced federal law, msh lacks the authority to subpoena testimony and documents as part of its investigative process. msh's criminal penalties must be enhanced so the threat of jail is real for the working of interest. knowing violations of these key safety laws should be companies and not misdemeanors. most importantly, we must prepare the miners. minors must be able to rebound safety concerns without fear of retaliation. we look forward to working with the committee on strengthening whistleblower protections for miners. i think is necessary to examine

the current statutes, regulations and policies, and ask what more can we do to ensure the health and safety of america's miners. there are miners, mine operators every day that run safe operations and save my. and miners go to work and come back every day unharmed, free of illness, free of death. that is the standard we need to put in place across this country. minors have the right to go in safely after every ship that i did go to working with this committee and will be happy to answer any questions that you have. i thank you again, mr. chairman, for calling this important hearing. naked. >> thank you very much, mr. main, and thank you for your leadership. just one question i have for you. you said tragedies taking a look at regular changes. that will simplify the criteria for minds in the pattern of violations program. i guess, if you don't want to get in all that now i would ask

you to get, to submit to us what those rigor toward changes are that you can do and secretaries lease that we don't have to addressed legislatively. so if there are things you can do regulatory, that relieves us of the burden of doing legislative would much rather do that so we can focus just on what we need to legislatively. so if you could maybe submit that to us later on. >> i would be happy to do that. >> i would appreciate that very much. senator isakson? >> [inaudible conversations] or they give them much, mr. main, for being here to testify at all the work that you and your inspectors do. do you know if msh has ever sought and injected released under relief to close the mine being deemed a hazard to the minor? >> in terms of the reliever talk about, i think what we're about to pursue is going to be first time in the history of using

that under the mine act, for what i'm told from our labor department. >> it is to you or have in junk of really? >> there is injunctive relief that exists that talks about in part of part of the pattern of violations and there is some language that probably will be tested. but there is a provision that we fully intend to test, and there may be need for congress to take a look at limiting any shortcomings in that injunctive relief as we move forward. >> but today you never use the power you do have come is that correct speak with that particular power, to my knowledge, i do not believe that's the case. >> in your printed statement of your remarks, your prepared testimony, on the third paragraph of page five, you cite a spike in violations that this mine, and refer to 515 citations

that were filed in 2009, and 124 and 2010. just try and forget what those violations would be, i divided that number into the 1.1 million, which was the amount you said those fines would commit to, and that is a $1725 average find per 625 violations. then i went to look at the authority on fines, and under civil penalties in tranforty of up to 50,000 on standard violations, up to 220,000 on fragrant violations, up to 5000 a day on the failure to correct, 250,000 on a criminal willful violation, five of thousand on a repeat willful violation. and then $10,000 or five years in prison for making a false statement to authorities.

if i take those numbers of authority, and talk about serious violations and it wouldn't take a minute to get to 1.1 million. yet, you issued 639 violations during a 15 month period leading up to the explosion. where most of the 624 violations like a rag being found or admire smoking or something like that? what were those violations to? as far as my spoken, i'm not aware of any dealt with it. i think most often cite our ventilation problems, combustible tree is problem. things of that nature. i think and having been on this for about six months to try to figure out how, how all these components work and looking back to how the mine act is enforced and the tolls that the agency had to use during the course, particular during a spike and understand the whole building

process, one of the things i came to realize is that probably the toll that is most effective is he on the dog is the ability shutdown a facility to get a problem fixed. and i think when i looked at what the agency did over that period of time, they seemed to ratchet up the use of that tool much more than is normal. as a matter of fact, i think this mine wound up to have the most 104 the orders of any mine indiana state. >> those are shutdown or? >> yes. >> coming times wasn't an? >> there are 48 of those are issued at the other big branch line. and that was the statistics that folks should be. that was the mine that had the most. and it's been my view that, over time the quickest way to get something fix is to stop it and fix it. one of the worries i have is we

do need to fix this bill the system. i don't think there's any question about that. this contest process has really i think crippled the implementation mine act crippled, what i think was some great provision put in in a new miner act. and that's the reason that we look at some of the quicker enforcement tools, and ones that deal with sort of the halting of the process and things get fixed. on top of that list is this injunctive action were talking about that we really need to put in use and put in use quick as opposed to later. every place i went for the last couple of weeks, i was asked a simple question. why did you shut that mine down? and if you look at the what all those tools are laid out, it's basically designed to finding a of the the mine that's out of compliance, force the operators to fix that. and then once it is six, go back into compliance. as far as a tool that is really laid out to do with the holistic

mine problem, that encompasses several standards, the only ones that you have is the pattern of violations really that's been used over the last, well, the patterns since 77. that's the heavy still i think it's been in the mine act sense 1969. so we need to do something quick, which injunctive relief is your best tool that we've looked at. we need to fix this pattern problem, people respected. to have a law that was put in effect after the scotia disaster in 77 that i think congress that was going to fix the problem. the application was undercut, we went through 33 years without one single one ever actually having in place on the paddock that make change going forward. as look at the pattern and i was looking at this prior to the upper big branch disaster, this is something that we talked

about at the house hearing in february. the pattern system we saw was broken, in respect to how difficult it was to put minds on that has a troubled compliance history and that easy it was to get off your and sitting there, you can see how it is easy to game the system on both ends. contest of violations, let us bring out, it will be a year before it gets an ill be so overload and the court system that scheduled hearing will be difficult. and so will be if we don't fix that side of the problem. and on the getting offside means they don't really get put on the pattern. they are put on notice, and can be on a pattern but if they drop their as an entry which is a short time, they can get off. we've had mines that i saw look at the data that have been twice over identified as pattern might. and the pattern has been used much. i think if you go back in the mid '90s for short period of

time, just recently posted 2007, is about the only periods of time that the pattern was never utilized as a tool. what we aim to do with regard to my testimony, in favor and what we aim to do now is to fix that. there's 24 month history is a problem. this toy for months history held hostage to the process is a product that we selected these mines, from what i've seen i'm not happy with it. we need a better identifier of a formula. the computer was down. that's just one of the issues that i think we have to go back and prepare to make the system work. and to make it work i think we need another process in place that effectively identifies those mines that has a troubled history. we have to quickly deal with applying the pattern. would have to make it tough for them to get off. tough means that if you believe that they got there on the

first, in the first place because they didn't have an effective safe and healthy program and they were inspecting to daycare business, one logical assumption would be for them to get off, they would have have an effective program that doesn't. not just over 90 days, for a drop of the transcending violations, but to fix it so those mothers can have some cover. another issue that we've looked at is this subpoena issue. there's a story that hit today over 300 mines that msh made inspections, two of the before the upper big branch disaster and one after the disaster. and all through those were were true by anonymous complaints. now, did minus make those complaints? we don't know but there is some specificity that probably some miners were worried enough about it to make a call, but was careful enough not to leave the name behind. when our inspectors went in those mines we found it legal contact at one would not think that we saw in mine today.

and conduct that was only found because the inspectors got there into mines and captured the phone. so that might operas couldn't call underground. >> i hate to cut you off but the chairman is about to have a hissy fit over because we're gone five minutes overtime. can i just ask one click occasion? >> sure that you want to replace has a two minus in the current injunctive relief with terminology pattern of practice, is that what i heard you say? >> i'm sorry? >> currently under injunctive relief you're allowed to do it and you say assistant hazard in a minor. and what i was trying to understand in your testimony, you would like to expand or change it to pattern of practice of the mine operator, is that correct because we want to work with congress to actually fix that and talk through what we really need to do to change that language. >> thank you, sir. >> thank you very much. senator byrd wanted to attend. is unable to attend the hearing. he gave me some questions he

wanted to ask. i will submit those for the record to you, mr. main. without asking them. but we are pleased that senator rockefeller here. and just in terms of the order, senator rockefeller, senator brown, senator murray, senator bennett, and less republicans show up in an will go back and forth. >> mr. main, this is 26 pages of violations. at the mine that we have just been using with. and it takes place actually only since january 1 of 2009. so we're talking about a relatively short period of time. and all of these violations, now, i constantly run into mines in relation, does control, all kinds of things which are an

accumulation of combustible materials, all things which are just be speaking at something about to happen. my question is can we are sitting here sort of fix on the pattern of violation, should it be, should it not be. why isn't it possible for one of your people, federal inspector, a duly trained, when they come upon such a thing, maybe they make a quick phone call to you or something of that sort, but that they have the power to shut down that portion of the mine which appears to be affected, and, you know, these are all for real. these are all very, very much for real. they carry fines with them. they carry violations within. they are part of the problem which is watching msh working at the appeal process and all the rest of it. but some of these decisions, you know, i do want to imply that

msh is a bureaucracy but i do want to imply that you have individual folks who are well-trained, who are professional minor inspectors. they see these problems, many of them worked in the mine. maybe most of them work in the mine. so they have to know what it is, you know. it's pretty hard to miss combustible materials we are looking at it that it is pretty hard to miss violations or ventilation problems. when you are just feeding it. why can't they take action? why isn't we have to go through this enormous think leading up to a pattern of violation, which, in fact, has never been used? >> probably a good way to start this is understanding what the tools are that inspectors have come and i don't disagree with you, senator rockefeller. i think you will see more aggressive use of tools that exist in the mine act. but if you look historically what's happened, i'm going to take an easy one.

a situation where you have a continuous miner that is not permissible, and what that means there is some component on that piece of equipment that has a gap in housing that houses the electrical proponents of which a spark, tiny spark can get through that can ignite an explosion. the cause of decisions, and this is something we have and we want to talk about some reforms on, the commission decisions over years has defined of those kinds of standards to the point that it is very difficult for that expected to cite them and just turning up the ladder, to cite those kind of conditions at the transcending serious violation. and found that you almost have to have explosion to occur to find a serious violation in that regard, that tells me we have a problem in the way the standards are being interpreted and the way they're being applied in

this country but it's over years of litigation through the review commission. when an inspector goes to the mine to have full authority to use their tools whatever they have at their disposal, if they determine a condition is imminent danger to issue that 1078 order to have the miners removed from that particular into the company fixes that specific problem. i say it is a curtain down. wants a copy puts a curtain back up, they can go back to work. >> mr. main, ventilation is no mister. you can feel it. dust is no mystery. you can taste it, you can smell it and you breathe it in. why, if that is a condition, that one of your inspectors finds that he cannot simply close things down for a period of time so that that can be fixed? >> looking in the past, i think

that there has been a weakness in the enforcement of the law and has a lot to do with the way the law has been interpreted. to be honest. i think going forward were going to test that everyday to utilize the tools that in our possession. during this recent sweep, as an example, that we kicked off after the upper big branch and the focus of that was to make sure we didn't have another upper big branch out there in the mines. we have six months or actually shut down because the tools that was in the till that was probably more used than they have been overtime. wants the companies fix those like the ventilation problems, clean up the coal dust -- >> mr. main, i'm going to interrupt you here for just a second. mr. isakson just give me. msh may seek temporary or permanent injunctive relief to close a mine or take any appropriate actions whenever it

finds a mine operator engaged in behavior that constitute a continuing hazard to minors under section 18 cache a dash eight. you say you have does. it can be explosive. that is not even a question. he asked you a very straightforward question. why can't you set and why hasn't never been used? is that what you're telling me speak is yes, it's their been using is a might act as we know. >> why? >> that's a good question. >> who can answer it? >> we're going to -- >> answer is that i can't speak for past administration but i can do this, we're going to use it. >> i should hope for. if nothing else comes out of this hearing, at least you better start using that. thank you, mr. main. sorry to interrupt you. i wanted to get that issue taken care of. i'm sorry to have interrupted you on that. i appreciate that. thank you. now, go to senator brown.

and i keep asking, please keep in mine we have three more panels. spent i think senator enzi was nice, easy not? >> okay. >> thank you, mr. chairman, for hearing this holding. and thank you mr. main or the mine workers and citizens and people in the committee of west virginia, a day to honor the men and women killed, disabled, injured on the job. in my state of ohio alone in 2008, 167 workers died on the job, and the 119,000 injury claims were filed. the ohio bureau of workers compensation. before my question i'd like to share a real quick story that i had steered with mr. main with his in my office. i've were my lapel, a picture of a dinner in a birdcage and what

in this room knows what that's about, just to signify the importance of workers in safety and all the other things that come with it. the question i have is the mission in your statement, mr. main, that msh has limited tools to hold that actors accountable to try to force mining companies to change their behavior. you gave an example of a tool that msh does use by issuing a withdrawal order and stopping production. but these orders are only used when conditions present imminent danger. my question is, isn't that too late? our withdrawal orders just enough, adequate to prevent disaster? >> yes. there's about four basic tools that inspectors have under the might act to take action. one is what we call 104-d citation was is if it isn't corrected in the time given, that's illegal 104-the order.

we have order which if the inspector observes a condition they believe to be eminently dangerous they can take quick action for that condition, shut down that area until it's correct. we have the 104-d orders, it is conditions are serious that are willful violations, item and operator, that can decide for us as a citation and then as an order. and it was the issue that which closed on that area, so that condition six and once a mine gets on what we call that d. one series, any subsequent inspection, the inspector finds a violation, they can issue an automatic order then the other provision under the mine act is

104-e. which is a loan process to get to, the system is broken. the injunctive relief action that has been spoke about here is something that our folks have taken a look at and we do fully intend to implement that. it is the one to in the mine act that gets to a broader application where asking congress to take a look at that too presuming there will be some challenges to that to look at those pieces in there that may be troubling. we will take the first run of using that through the courts, but that's one that we, you know, hope to have some support from congress. that's basically the tools that exist. >> i guess i want to try to get more specific. do you think the withdrawal orders are used to stopping production, are they too late? are the used enough that it

saves lives? >> it's my belief, that's the reason were looking at the number of things that i think we have to do to fix this problem. we've got to figure out a way to empower those miners were working in some of these conditions to figure out how we can empower them to be able to take action, to protect themselves. that's an issue that i think is front and center. but as i look at the village versus the order to when i get you to the quickest action, in my opinion, is that order. penalty is just going to be for what ever is the end result of the pentagon says. it's going to be a lot longer period of getting penalties work a. >> that's the point of the withdrawal order. you said empower the minors to report and to point out these violations. simple question. our union mines safer than nonunion mines? >> i think this. i think that worker

representatives at mines, and those represented have a chance to freely exercise that right that congress gave them, and if they are traveling with those inspectors during the process there's absolutely no thought in my mine otherwise that those mines have to be safer. and mines that were the mine operator allow their workers to have a voice in safety and for the for the exercise of that, i think our safer mines. >> thank you, mr. chairman. >> senator murray? >> mr. chairman, i want to thank you for having this hearing. to recognize the men and women who we have lost on the job, and to talk about how we can make our workplaces more safe and healthy. i want to express my sincerest sympathy to all the families that are here in this room, and really thousands across the country, two days ago i was in washington were over 1000 people from the community came to memorial service for the seven

men and women who died in the tragic refinery fire on april 2. dan aldrich, matt, daryn, and katherine hull. it was an overwhelming event, and i know that all the families here are suffering terribly. and i just want to say to all in this room and to the other room, in the overflow room, i really respect your courage in danger, because i know that nothing we can do to can bring back your loved one. but your courage and conviction income here today and being in the audience helps us really push hard to do the right thing so this won't happen again. so i just want to thank all the towns that are here today. mr. chairman, i have some questions for the panel coming up on osha, but i do want to ask mr. main, you know, we have looked hard and long on these mining issues and its accounting we just seemed to can't get there. i noticed on april 22 and

article in the "new york times" that ran an article entitled to mine shot safety practices vary widely. and outlined a safety culture at two separate nonunion mining operations, that were operated by since the area of the nazi. the article referenced a federal mine inspector by the name of daniel woods sank nasty mike to some of the most difficult mines to handle, and he said and i will go, and inspections that should've taken that day took 30, because of the first day would be spent arguing with nazi operators over paperwork and permission to enter certain sections of the mine. do msh inspectors require the mine operators permission to go into a mines? >> no. >> so what is the barrier for an inspector to get into a mines? >> i'm not sure what happened on this particular case. having been out on inspections in my lifetime, i know there's

different ways that mine operators deal with inspections. some of them work with the process, work with inspectors. and sundays tactics to just allay an inspection process. there are times when inspectors have to take extraordinary action to enforce their right to go to the mines but that doesn't happen very often. i think in most cases what happens is the inspector gets through the normal process of doing mine inspections. what is raised her, and if you couple what was raised in that situation with what we found in the three recent inspections that which is reported on today, i think you get some ideas about how, i didn't read it all, how some mindset of the operations to normally flow with the compliance and all. and others do not. but we'll have to look into more details of that, but i can appreciate an inspector -- >> i think we need to understand that so we need to know if there

is something we need to do in the law to make sure that inspectors get in. in your written testimony, utah about how massey energy and put a popular tactic of contesting a large number of citations. how does that tactic health operators avoid a pattern of violation? >> real simply this, for the cause of a postage stamp they can file a request to contest the violation. that violation goes into the process to be adjudicated. right now we have 16,000 cases backlogged. we have years to resolve those backlogs. and until those particular violations are finalized by the court system, by the judicial system, they can't be counted as part of the operators history. >> is there an increased their lead for contested violations? >> no. >> is there any disincentive for operators to file? >> one of the things were looking at is creating some

disincentives, if they're disincentive for those operators who try to game the system. there has to be some process at the end of the day, as all these issues get resolved. to deal with that. but currently, no, there is not. >> i appreciate that. my time is up. thank you, mr. chairman,. >> they just get the issues backlog and until they get a final adjudication, they can't, msh can't do anything. >> i was a 16,000 of them, i busy what we're doing is just delaying the safety of our mine workers. >> it can hold them up. >> senator franken. >> thank you, mr. chairman. i'd like to associate myself with the senator murray's remarks and addressed myself to the families, and thank them for being here to bear witness, and to make sure that this doesn't

happen to other miners and other families. . . you say that these mines have stayed open, have been held open

because of the way the law has been interpreted. my question is by whom? even when there has been dust and violations and ventilation and gas leaks, these are all the things we suspect caused the explosion. the way the law has been interpreted has kept these minds open, even this mine, in the face of all these violations. who interpreted the law that way to allow the mines to stay open? >> there are different litigation's that happen over the years that has lead to the current application. the health safety review commission deals with a resolution of enforcement actions, citations, orders to issue and a lot of the

historical application that has been developed through the review commission. that is one of the reasons we need to take a look at some of the provisions that are the center of the universe for limiting inspectors's abilities to you and -- use these. this notion a permit stability violation where you have a piece of equipment with a gap in it takes a little spark to blow up a coal mine. it has to go to an extraordinary step, almost an explosion to be considered serious. >> you are saying this is in litigation? >> there has been litigation over the years that has refined the definitions of the application. >> these are federal judges? >> federal review commission.

>> federal review commission. >> a couple areas we're looking at which we may be looking at legislatively as what we want a chance to discuss with the committee. one of us read defining the significant substantial issue. terry noe normal favor on the part of the mine operator to address the safety condition. those over the years based on my view and the view of others have been constrained to the point that if you look at the rate which is a third of the violations. if you go back to 1980 looking at 80% of the violations i am not saying that is where they should land but over the years, that is where the application is and to change that we need to change the definitions that are used to identify which ones are

serious and which are not. there are a number of things on the table to take a look at as we move forward to figure out the reforms. >> maybe the definitions of what is serious? >> and substantial. and honorable failure and the pattern of violations process because to be able to say it is one of those it needs to be significant and substantial. >> another question that i will submit to you, you say you want the miners to be empowered, there are representative systems where miners can participate, 2% in kentucky have that and i want to know why but i will submit that in writing for you.

thank you. mr. chairman. >> we are going by a ranking senator. >> i appreciate senator isaacson stepping in for me. i do understand the upper big branch mine is the worst accident in 40 years, 29 people lost their lives and families and communities are hurting. i appreciate those of you who are here, our sympathies go out to you. i represent another coal mining state and being able to safely mine our natural resources and enjoy the economic benefits is important to the people of wyoming as it is in west virginia which is why i worked with senator rockefeller and senator bird and senator kennedy to write that back in 2006 in response to the string of tragedies that occurred that year and it is frustrating for

those who worked so hard to hear the activity at this mine and so i found over 500 violations and a significant amount of them were unwarranted failures. inspectors spent 180 days in 2009, but no one from the regional mine office followed them to insure a potential pattern of violations standards in october of 2009. i know it was appropriately placed on the status in 2007 and they moved quickly to reduce and improve the safety record to avoid being on that status and compared to 2007 net was a larger budget and more inspectors and new leadership. i will submit a series of questions that deal with this so

i won't take up more time know and we have three more panels to go and important questions but i think senator rockefeller for the action he helped us to take. one of the fastest times we ever passed a law in congress. we thought we had addressed a lot of issues. i know from the oversight hearings that we did do a lot of those things. we do expect agencies to report to us when they find something that isn't covered by the law that needs to be covered by the law. there will be follow-up questions to dig into that deeper so thank you for being with us today. >> follow-up on that 818 and please thank secretary for her help and great interest in moving this forward. we have talked on that on a couple of occasions. i know she wants to get to the

bottom of this and change things too. thank you very much. panel number 2. mr. cecil roberts has been president of united mineworkers of america since 1995. he is a sixth generation coal miner advocating for better treatment. he graduated west virginia technical college in 1987, received an honorary doctorate in 1997. and mr. geoff harris is a fair generation miner who has been working in mines in west virginia for 30 years. he is employed at the harris mine in boone county, west virginia where he works as a roof holder who pinned the underground route of the mines to keep it safe. next we have mr. wes addington from the applications law

center, a nonprofit law firm that fight for justice in coalfield preventing coal miners on mine safety. he is also director of the center's for mine safety. he earned his law degree from the university of kentucky. last we have mr. bruce watzman, association's senior vice president for regulatory affairs. his responsibilities include working with member companies on the design of safety and health programs for use in mines and the management of safety and health programs and also serves on executive committee of the mining section of the national safety council and on various planning and advisory committees in the national institute of occupational safety and health. he was a legislative assistant to rep of west virginia. welcome all of you. thank you for being here.

thank you for your patience as i will thank and next two panels. your statements made part of the record in their entirety. i appreciate if you can sum it up in five minute. mr. roberts, we will start with you. you are no stranger to us or if this committee. i know what you have been going through over the last several weeks so thank you for being here. >> i want to thank you for holding a hearing today and i want to thank this committee for the work you did in 2006. thank you for the compassion you have shown over the years to coal miners particularly those involved in tragedies. we are thankful for the legislation in 2006. i want to thank senator rockefeller for his commitment to keeping coal mines safe in west virginia and across the nation and i want to thank senator bird for his work on

this particular issue. and i thank you for many years of hard work and dedication to call miners of this nation. i want to recognize the family members. they are here as well as others across the country and what we hope is that i hope to never do this again. someone asked me as i entered the memorial service on sunday, what do you hope to come of this, i hope this is my last one. i want to tell you they were my friends and neighbors. i have known some of them all my life. i have to tell you this emotional thing i have been through, i apologize for that. i want to point out, five of

these tragedies in the last four years are presentable. i want to say something i firmly believe in my heart. this should never have occurred and the only way it occurred, the wall was violated. if they had been in compliance with the laws written in 1969 and updated in 1977 and 2006 it would have been impossible for this tragedy to have occurred. i want to point out one other thing. we avoided one thing. why do we have operators in this nation that will practice this kind of mining. we have operators for 100 years and i defy anyone to go back and see where peabody had a tragedy

like this, where bethlehem -- it never happened. this company had two of these tragedies in upper big brand and i want to report something. these miners are scared to death. they are intimidated. this company is run like it was 1921. that is the truth. you don't have to take my word for this. i can tell you the communities and the people of western junior had enough of this and they are ready to take a position. my position is when you talk about criminal prosecution, now all is the time because people who knew this was going on, no question in my mind that the people at the top and the board of directors knew that this was in this kind of shape, this ceo doesn't live a thousand miles

away. he checks on these mines every single day. you have to understand when you have people like this, we share the whole federal government responsible. how can accompany be allowed to put people in this kind of a position. congress should take a position and say we are not going to tolerate this. this is not china or columbia. this is america. workers, a young man wrote his mother a letter, a young man, 25 years old wrote his mother and his fiancee a letter, he has a young baby that i met on sunday. if i die in this call mine tell everyone i love them. that is the kind of letter people wrote when they went to vietnam in my career or going to iraq or off to war.

that is the letter young men right. that is not the kind of letters they're supposed to write when they go to work in the united states of america. joe mentioned some of them. i thank president obama for putting a coal miner in charge and for the first time in history of this country and i submit to you, it won't be longer that the coal industry will be saying he is too tough on us. that is what is going to happen because he is going to enforce the law and coal miners are going to be safer and today i am sending a letter, it is time to have a public hearing on the situation in west virginia because they do have subpoena power and whenever they have a public hearing let's put everyone who had anything to do

with this tragedy with the families can come. families are excluded from these investigations. the families who were most affected can come and put some money in jail if they like. i know i have gone over my time and i am emotional but like you i take the record of this -- this is the worst mine -- this is the fourth worst. there three others in worse shape than this. sorry i got carried away but i must tell you how life feel about this today. >> i wish my dad could have met you. >> i wish i could have met your dad. >> he started working underground in 1905-1910 and worked there for 20 years before i was born.

this was iowa. listening to him later in life talk about those early years when they were working in those mines and what would happen to them if they tried to organize a labor union or anything like that, to hear what would happen to them reminds me of what you are talking about. i would have fought those days of long gone back in the dark ages. mr. harris, welcome. senator stevens will be made part of the record. >> i am a third-generation coal miner and i worked at the massey mine. what really concerns me with a panel i appreciate everybody being here and the family. i am really sickened by what went on and the reason i say what i say is i worked at the messy mines and the mind the

work that would take every -- until they got the right one and they would -- that is what they would do. the new detectors and everything reads memory. they wouldn't turn them in but when i first went to work for massey everyone told me about it and it can't be that bad. i worked at the big branch mines. they would shut the mine down. when they would shut the mine down it would transfer us to different lines. it doesn't matter, you had to live out of your car. never knew anything about the mines. they never give you a safety meeting. the first thing they said is

that is your machine. you went up to that and the first thing they do is turn the ventilation curtain down. i heard senator rockefeller talk about the dust and debris that creates the explosion, when an inspector would show up on the property they would shut the section down. they would drop dust, get all the debris away that could be an explosion. as soon as the inspector left the property they took it down and it is impossible to mine 600 at a coal mine. and do it right. i have worked out of union mines. we try to do everything right and we do everything right and the company wanted to do everything right and it is not fair to those miners.

i worked there. i try to get these people to understand -- if you don't like you get out of here because if we stand up we are all fired. that is away they operate. i worked until a couldn't take it anymore. my wife was worried and i feared for my safety the whole time i worked for them and i said i quit. i will start to death first. it is not right for person, a human being to have to go to work under those types of pressures and do a job. it is not right. people got hurt when i worked there. they would let you come to work to keep from filing accident reports and put you on light duty and you do a light duty job to keep from filing an accident report that would go against the minds. it is so much that don't have enough time to tell it all. but it is not fair.

this is america. we shouldn't have to live like that. at the mines where i work on the safety committee, i have as much -- i can tell them to shut the section down if something is not right and we are going to fix it. those men don't have that right. it is not right. >> thank you very much. very powerful statement. it is good to have someone like you who is out there to get your hands judy and goes into those mines to tell us what it is really like. >> members of the senate committee and senator rockefeller. thank you for allowing me to speak to you about the health and safety of america's miners. my name is wes addington and i am attorney at the law center,

represents miners and their families on mine safety and health issues. at the law center operate the mine safety project which improve safety conditions for miners in the coal field. primarily the mine safety project represents miners that suffer workplace discrimination for making safety complaints. unfortunately i am before you today following the mine explosion in west virginia which claimed the lives of 29 miners. the disaster is synonymous with death in the coal mines like the recent disasters before it. crandall came in, barbie, all were preventable. five mining disasters is not only a crisis but a national disgrace. my father was a kentucky coal miner and his father before him and all four of light gray grandfathers were minors. congress is opening declaration in the mine act of 1977 that the

first priority and concern of the mining industry must be the health and safety of its most precious resource, the minor. moving forward, minors should be our most precious resources in any strategy to improve mine safety in america and prevent future disasters. miners best know the conditions present in their mind more so than inspectors or operators. miners can provide information to federal regulators working to ensure their protection. congress realized long ago that mine safety would generally improved to the extent that miners themselves are aware of mining hazard and play an interval part in health standards. we have to reach the point that minors without hesitation report on unsafe conditions. scores of individual mining fatalities show that this is not happening frequently enough.

in too many mines miners that complain about unsafe conditions are harassed the ticket -- interfered with were discharged. those who complain are not supported or protected to the degree and division under the mining act. and experience:will quit a bad situation to find a new job elsewhere rather than ask the mining enforcement agency to investigate and remedy the unsafe conditions. the federal government has to do a better job publicizing minor safety and increasing their support of miners who exercise those rights. i know my time is limited but the point of my other two topics that i plan on talking about which is increasing the frequency and quality of training of minor safety rights and the pattern of violation

notice. what i would like to talk about briefly is representatives of miners. they are working miners selected by two other miners to represent them and safety and health matters and their minds. they are granted special rights under the federal law which are designed to encourage active participation in the enforcement of mandatory health and safety standards and to keep their co-workers apprised of issues that might affect mine safety and health. they have the right to a company inspectors during an inspection of the mine for the purpose of aiding such inspection and participate in conferences held at the mine and the right to receive every copy of any order or citation would decision given to the mine operator. with all safety advantages of the system it is shockingly underutilize. the freedom of information act revealed in 2008 that 98% of 249

coal mines in eastern kentucky did not have one minor's representative. only four had miners' representatives. one reason for the lack is my ears are often interfered with or at least discouraged by the operator if they show interest in becoming a minor threat. one of our current clients was discouraged from becoming a minor threat at his mine. special attention towards increasing the number of miners reps and i consider congress changing the law to allow minors reps on every shift at every mine. to ensure substantial safety protection. thank you. >> thank you for that suggestion. mr. e but bruce watzman. >> before turning to the topic of this hearing let me express

the condolences of the entire mining community and the families of those who tragic lost their lives at a big branch line. our thoughts and prayers are with all the were touched by this tragedy and our heartfelt thanks go to the rescue team members who worked tirelessly to recover their fellow miners. 9 come here to assure you that we will join with you to find out what happened at the mine and why it happened. we do not accept that mining tragedies are inevitable. we join with others here today to ensure that from this tragedy will emerge a stronger resolve to do better what we tried so hard to do well. we understand the significance of the challenge we face to bring all miners home safely from their important work. this is the responsibility that we owe all who work in the minds and it is the debt we owe those who perished at the upper big branch line. mine safety is an operator's obligation and must be their

highest priority but operators have a shared responsibility to assure a safe work place. it is this shared responsibility that led to the dramatic improvement of the last two years where we achieved all time historic lows in the number of miners who lost their lives, still too many but the record was improving. several teams have emerged since april 5th and i would like to address the three that are most relevant to this hearing. first is the question of the adequacy of the enforcement authority provided under the mind act. the quality of workplace inspections and the appropriate application of the full range of enforcement authority provided in the law. second is the backlog of cases pending before the review commission and whether these appeals jeopardize minor safety by preventing instituting additional sanctions against operators. and whether new laws or regulations are necessary to create a culture of prevention

across the industry. turning to the first issue attached to my written statement is an analysis demonstrating how the enforcement industry goes well beyond the enforcement authority provided oshosha. mines have mandatory inspectors and entry authority. authority to withdraw minors from any area of the line for failure to obey cited conditions, failure to comply with mandatory standards and when an imminent danger is present. the enforcement powers under the mining act are extensive. they need to be used when conditions warrant rather than broadly supplemented. the second issue is the backlog of cases before the review commission. we support efforts to eliminate the backlog, its continuation does not serve the interest of minors or mine operators. we want to assure you we are ready to take the steps now to correct what all agree is a

dysfunctional citation in the process. .. >> the eminent danger authority which was discussed earlier is available, and unlike pattern authority, it doesn't require even the finding of a violation of the mandatory standard that it's far more powerful than the

pattern tool but it is infrequently use. in she always has a junket relief of a story. the fact is congress did not limit msh's enforcement authorities. the tools are sufficient when properly used. the final point is what we need to do to create a culture of safety across the entire industry, a culture of prevention across the industry. and argue the strategies for improving performance must change. last year 86% of the mines in our industry worked the entire year without a loss migh might k them. enforcement contributed to this record. it's necessary, but in of itself is not sufficient. we need to place renewed emphasis on risk-based safety performance through programs that share the best of the best in safety performance with the entire industry. these are vital components of an effective safety effort that go beyond regulatory enforcement authority. mine operator improve their performance year after year

recognize the need to go beyond mere conformity with the law. they understand the regulations alone are not sufficient to bring about the continued improvement. it's time for all of us to recognize that culture, leadership, training, and other organizational behavioral factors influence performance. to the extent they fail short, regulators provide a needed and necessary safety net. regulators and mine operas must stand apart but an adversarial relationship not be a hostile relationship as we seek better ways to improve mine safety. thank you, mr. chairman. >> thank you very much your and before we start a round of questions, i was told earlier that many people here had some photographs of their loved ones who were, i think lost their lives in the last event are maybe some previous event. you have been very kind to come here. hold up those pictures so we can

see who these people are, these real human beings. hold them up. hold them up for us. now, where these are people lost their lives in the upper big branch? other events. thank you for being here, and thank you for bringing those pictures. mr. watzman, let me start with you. you point out that msh inspectors have you three to enter a withdrawal order on the spot if they see eminent danger. that sounds all well and good, doesn't? but msh inspector being there at exactly the right place at exactly the right time. to prevent an imminent -- how can you do that? you can't depend on that. it seems to me you just can't depend someone will be at the right place at the right time to

prevent an imminent disaster. so it seems that we need to be more effectively, have the ability to more effectively target operators that have a pattern, who routinely, who routinely put their workers at risk, to stop them before it becomes an imminent threat. so i do disagree with your suggestion that they quote eminent danger withdrawal authority of congress is the same result as msh's pattern of violation of 40. in february in anger for the house hearing, the pattern of violation is in the law for a very valid reason. it is there for a very solid reason. it's just it is not being used, and probably are some legislative things that we need to a dress in making sure that that pattern can be used more effectively. we've got to quit letting people gain the system. as they do right now. with these patterns of violations for one year after year after year, and then there

have to do anything because they never get a final adjudication. they never get that final adjudication. see, that's a big game the system. while the eminent danger is being used, it just seems to me it's not practical to have someone there exactly the right place at exactly the right time. >> mr. chairman, you're exactly right. and inspector can't be in the mine every moment or be in every location in the mine. there are several factors that come into play. one of the things in the title for this hearing is changing the culture within the industry, changing the culture across the industry. and that's an important element. but there are additional authorities. the assistant secretary was entered into a dialogue with several of you earlier about the injunctive relief authority. they don't have to wait for the pattern. the agency today does not have to wait for the adjudicatory process. my point is, pattern is an important tool and i'm not

trying to minimize the significance of that, of that tool. but what i'm trying to impress upon you is that there are other tools that exist today, while we continue to work through the backlog. that troubles all of us. >> well, changing the culture? is that what you said? well, i don't think mr. harris' culture needs to be changed. or the workers that work within. i don't mean him or mr. roberts, the other miners families out of. i've been around coal miners most of my life. they work hard. these are hard-working people. and they want to work. they know they are providing the energy to run america. they want to take care of their families. some of them want their kids to grow up to be lawyers. or senators. i don't think my dad ever wanted me to be one of these. [laughter] >> but nonetheless.

and they care deeply about their fellow workers. and their health, their welfare. so it seems the culture we're talking about changing happens to be at the employer level. is that what you were talking about? >> i think the culture needs to be changed across the entire of the industry and their many factors that come into play when you're talking about culture. it has to start from the top down, clearly. that's recognize across organizations, be they in mining or outside of mining. the leadership comes from the top down, and that sets the message for the entire organization. but those are some of the things we're trying to do across the industry voluntarily, to take, and it was discussed earlier, take the best of the best that there are companies out there that perform year in and year out without lost time accident. you know, we are trying to determine and share what they do and why they're able to accomplish that, and make sure the entirety of the industry has the benefit of that. >> mr. roberts, your observation on changing the culture.

obviously, there are some miners, some mine organizations and owners that, as you pointed out, operate good mine. >> we don't need to change the culture of the entire into she. because most ceos that i know, those presidents of companies i know would never have tolerated what's been going on in the upper big branch mine upper big branch mine and some of these other massey. they were fired people. they would have sent people to clean these mines up themselves. i will give you -- i will call their names because they did as they do use their names. i have at ceos call me that's got their names on one of their mine on a potential pattern here. cecil, i don't know what's going on there. they called me. i'm going to find out that i thought i had leadership there that i could depend on, and if that's not the case they will be going. and i'm telling you i'm going to fix this. now, that's the ceo of a company telling me they're going to fix this pattern of violation.

95% of this industry, bold statement from the on the other end is to come you don't have a problem like this. but we have a serious problem here with about 5% of this industry who do not care what laws you pass, daniel care who you send to enforce it. they are going to fight this day in and day out and we have got to come to grips with this and fix it. >> senator enzi? >> thank you, mr. chairman. i appreciate you holding this hearing, which was called creating a culture of compliance. that's what we're trying to do. mr. addington, i'm sure you're aware that and she has for a long time had any non-misreporting system for reporting hazards for anybody can use an 800 him or file a report online, and as the webpage says in bold letters, they don't need to identify themselves. in your express with miners, are

they aware of the anonymous reporting system? have any unemployed you work with trying to use the system and what was the result? >> yes and no. enough miners are not aware. broadly there are stretches toward saving right under the act, including the 800 number. the problem, it is a nice function can make an anonymous complaint to the problem in reality is depending on what they're complaining about, it's not very hard to figure out at the mine site who made that complaint. you know, if they're complaining about the bill, it might be the belt examined that they look for first. and a number of the clients that we represent, anymore whe when a complaint and make sure their name is on because they have more protection under the law they feel that way. so you know in theory it is a good function, and in certain

cases it's essential because the miners can be protected using the tranny. another answer, just as well better off taking the complaint out in the open. >> thank you. that's helpful. mr. watzman, since 2006, msh's budget has increased after the miners act passed to increase by 36% and msh as i over 100 new coal inspectors, perhaps duties increased resource. msh is able to complete 100% of the statutorily required inspections in 2008 and 2009 for the first time. why do you think msh was unable to properly follow up on the clearly concerning record of the upper big branch mine? does msh need more flexibility to focus on bad actors to? senator, i can't take it as to the thought process within the agency and the actions that they chose to take or not choose to take.

you know, what we know is that there are mines in this country, given their size and given the requirement, that msh must inspected every underground mine in its entirety for time to you. there's a misperception that four times a year means that inspectors in mine for daisy. there are mines in the country that the courtly inspection begins the first day of the quarter and the closer is the last day of the quarter, and they wrote into the next inspection. so there are mines in the country where there's an inspector in the mine every day that the mine is operating. i won't tell you that's the rule, because it's not. but there are many mines where that occurs. so you know, i'd like to leave you with that thought rather than try to speculate on why msh did or did not take any follow up actions based upon information that they had available to them. >> thank you. i know the upper big branch mine had inspectors on site 180 days the last year. that wasn't everyday but it it was pretty significant.

so when an in shaw inspector issues a citation, is there anyway for the operator to avoid a being that hasn't? >> no, under the law they have to update the hazard. oftentimes it is by the end of the ships come it may be by the end of that day. depending upon the conditions that they can't come it may be an extended abatement period and the inspector may extend the abatement period beyond the originally set. it requires a technologic ad onto a piece of equipment or something of that nature. but there is a fixed requirement for them to update the citation long before this adjudicatory process takes place that we discussed earlier before the review commission. >> does contesting it is about from having to abate its? >> no. >> thank you. i yield my time. >> senator rockefeller? >> thank you, mr. chairman.

i am really glad, mr. addington, he said what you did about if somebody calls a 1-800 number, which is not the culture of southern west virginia for most of west virginia. the assumption is nothing is going to happen. but the most important thing you said is they can trace where that phone call came from. i served on the intelligence committee. you don't have to be an nsa or cia to know that's a very easy thing to do. so making the phone call is, in fact, not reporting the danger come it's putting your own job in danger. that's what it comes down to me. i'd like to say to mr. watzman, you're the head of a very large corporation. i think as president roberts said, about 86% of the call operators that operate mines -- >> -that probably.

>> good. do a good job, trying to do a good job. i've had the same phone calls. that you have. people who are on that list who don't want to be in that list, they want to do something about it. on the other hand, there some that don't. that proudly flaunt that they don't. who require production schedules, perhaps every two hours of every day of every year, to find out not have the state is doing but how the production is coming along. i'm talking very specifically here. why is it that you have not stood up and his association? i have so many operatives coming to me disavowing any relationship with this particular company. which is, in fact, involved in all of the recent, aracoma, seiko, through the subsidiary, all of them. why is it that part of your

responsibility isn't to confront those people, your association to sponsor is to confront those people so you're getting all of us a bad name. or, why is it that you wouldn't accept the idea that the board of directors should be brought in? because sometimes the personality of the ceo, president and ceo, can overwhelm the presence of a board. they have to show up and show up a lot. they don't have the same responsibility. maybe much of something where the sport was have to go down a mine to our three times a year. made about something like the safety record of that my has to appear in the sec report that they submit. the safety record in the mine. no indices like the coal industry. no indices like the coal industry in terms of danger and in terms of remoteness and

intimidation. and to you, mr. harris, no, i will make this to you because you've already been so eloquent. to you, president roberts, in intimidation to me is at the bottom of so much of this. and it's not totally provable but it is an utter fact. i've heard so much of it in these last 40 years, that i've been working with this problem. and, therefore, you have to get at intimidation. you can't get intimidation through rules and regulation, through msh, to any law we pass. that is the culture of the mines that i think you and i are talking about. how do you respond to that? >> i think there's a couple of things that i would suggest that we might want to think about. first of all, the loss is currently that any minor who feels he or she is in danger has a right, legally, to withdraw from that particular area.

that doesn't happen in these mines because the fear of being fired and blackballed it so you lose the job you have and never get another job at massey, if you exercise that right. the second thing is if you call this 1-800 number and they find out about this, mr. addington so eloquently put it, they are afraid they're going to get fired for the. so i think, if i were to encourage you to think about something right now, and i would put criminal penalties on any mine operator who disciplines someone, and i don't mean someone who just didn't want to work, if someone legitimately felt that they were in danger, no one should be forced to work in that condition. no one should be fired center for calling someone that i think this mine is going to explode. there are stores here now and people come to us i'm sure they come to you, that said they were grown in here crying, afraid

that this mine was going to explode that's been in the mining industry for years. we should be embarrassed, me in particular for what i do, and all of us to say in america, that shouldn't happen. we should put someone in jail, whether it is a section former our own of the company who allow something like that to happen. we need to get some how power to these workers to say, if i called msha i'm not going to get fired because the boss is going to jail or be fired. and not only that, the ceo is subject to going to jail if he fires me. you need to somehow convince these workers that the government of this country will stand up for them and can protect them. right now they don't believe it. >> thank you, mr. chairman. >> senator franken. >> i want to follow up on something senator rockefeller

said, mr. watzman. he said that mine operators, mine safety must be the highest priority. he said they must go beyond mere conformity with the law. it sounds like from everything we've heard that massey had a reputation of not doing that. to say the least. why does national mining association tolerate that? >> center, i don't think it's a question or an issue of tolerating. you know, i'm not sure that there is much value gained in austin sizing an individual or organization. what we would rather do and what were trying to do it, as i said earlier, is raise the performance of the entire industry. you know, through the sharing of best practices, through the voluntary a awareness programs that we have initiated through the new website that we have created called safety sure.org. to make sure that we can

disseminate across the industry, you know, the best practices, the best of the best so that we can bring that level of performance of. and i'm not sure that austin sizing an individual or an organization moves us in that direction. >> if that organization will fully devise a, i mean, they're not going to respond to the newest web video on safety, massey, obviously. i mean, i think that's silly. frankly. mr. addington, when we had mr. main here, i kind of said, this is shocking, this testimony to me, that these mines continue to stay open. and i say why can't you shut down a mine, or shut down part of the mine? he said, well, because of the federal mine safety and health review commission has made some

rulings that made it hard to shut down. is that true in your experienced? >> well, it probably -- it's partly true in some respects. at the pattern of violations i don't believe that's true. if you look at section one '04, pattern of violation, the statute as it was intended, if you look at the legislative history, it really was intended to be a hammer. and unfortunately through implementing regulations in 1990, it was weakened and msha's internal criteria that they're using a week and it even more. i mean, we've heard a couple times during a hearing about potential pattern of violations. you won't find it in the statute. the statute nothing about potential violation that it says if a minor engaged in a pattern of violation they get a nose. right now what's been happening is they get a warning that they might eventually get a notice.

so you can see, and then the criteria for getting off that warning is relatively easy compared to what it takes to get on the warning. so we really are in the current state your talk about years before you get a potential pattern, or get a pattern of violations. >> i think we have to examine what we can do legally to make sure that mines are clearly not save our shut down. thank you. thank you, mr. chairman. >> well, i might respond on that is, let's say a minor sees some potential safety violations that he could report at which of the mine down. then you're out of work. they don't get paid. so right away you have got the conflict. should i report it? it's unsafe, but they shut it down company and my fellow workers, we are out of work and out of pay. so i can understand the conflict

that a miner might feel in that kind of a situation. senator casey? >> mr. chairman, thank you, and ranking member enzi for calling this hearing. for so i want to express personal condolences for all those who lost someone in this tragedy. no words of condolence or sorrow can match the grief that so many people feel. but it's important that we have hearings like this, and others, to change the policy and tried to do our best to be responsive to this tragedy. i grew up in a region of pennsylvania, which for decades more than one generation was a call region. and i have a very, very limited sense based upon some reading

and some family history and things like that, just a fleeting glimpse of what it's like to work and a mine, what is i got a a family member do this. so a lot of us come to these issues to the degree of humility that we should acknowledge. there is an essay written by stephen crane just before the turn of the last century about a mine in my hometown of scranton. a beautiful, haunting essay about all the ways you could die in that mine, all the darkness and danger. as only a great writer like he could express. he talked about one point in the essay, talk about the 100 euros, 100 different ways you could die in the mine. but even with all of the one modern technology, i don't think any of us could imagine this kind of a tragedy happening

today. so we have to, if it means changing policy, we need to do that. if it means amending or adjusting, we've got to do that. and i apologize for being late and maybe not being able to stay for the next panel, but i did want to ask kind of a fundamental basic question that is on the mines of all of us. and may have been answered 13 times already, but repetition around here is actually a good thing. and that's the basic fundamental questions that i have come it is based upon the experience at the table from our witnesses, we are grateful for your presence and your testimony, what does the united states senate, i believe the house, they have their own work to do, but what should the united states senate do in the administration do in the next six months, say, to make sure that this kind of tragedy does

not happen or substantially reduce the likelihood that something like this would happen again? and i would start with mr. roberts. i have known him over the years, and i'm grateful for your leadership on these issues on behalf of the working men and women. >> senator, thank you. there's a number of things i would suggest in my testimony. one is dealing with the backlog that exists at the review commission. there is not only a disincentive that doesn't exist, there's an incentive to repeal every one of these finds that because if you look at the records, you get 40 some% reduction on appeal. so if you get cited for $1 million, you're on appeal before it's all over, you end up paying half of that, or less. by way of example, it hasn't come out here, by the way, over $1 million in fines at upper big

branch, they paid 100 some thousand dollars. the rest of it i guess it is still sitting somewhere in a field process. we argued that there's no reason why these findings should not be paid immediately and held in escrow, if they want to appeal, that we do not get the benefit of that money in their pocket and encourage them to do this. i would point this panel back to 1977, and what this congress wrote, that these fines should be paid in close proximity at the time their issue. because of that congress understood failure to do that would lead to something similar to what we have currently. so we would argue, pay those fines quickly. the second thing we would argue, i think this whole pattern of violations is being kicked around here pretty good. it's an absolute failure the way it works right now. what should happen is while you are on, if you