ft aaa, the 2007 reauthorization of the fda user fee programs included provisions intended to strengthen the antibiotic pipeline through the orphan drug program. how effective has the orphan drug program been in your research and development work related to drug-resistant bacteria and what cooperation has it induced on the part of manufacturers, feed manufacturers are antibiotic producers were farm organizations? >> certainly the orphan drug act has incentivized the development of drugs of various types of. >> you have said that this has incentivized. what particular incentive has it produced to research and

development related to drug-resistant bacteria? >> the basic research that we do feeds into a company wanting to develop a drug for an orphan disease, a disease that is a relatively rare disease. ..

some more and learn a little bit more here a and i don't want hour very fine panel members to think that i in any way have tried to demand them. i think we have a great deal more knowledge about this but i feel comfortable on the subject. >> thank you. the gentleman from missouri, mr. want. >> thank you, mr. chairman. i agree with chairman emeritus. this is a good hearing and buy a ticket different path on the topic. several questions came to mind as senator dingell asked his questions and do we know that the animal food chain doesn't get less safe if you don't put certain antibiotics in the food in the system, how do we know that? i mean, there is a veterinary guideline on these antibiotics so held we know that it doesn't have just the opposite effect? >> mr. blunt, if you don't mind i would like to finish the answer to a question this might

feed into what you were saying. the issue is if you give antibiotics to anybody an animal, human, what ever, you will on a cliff a unequivocally reduce the micro. >> isn't it true that antibiotics to animals -- you don't have much of a chain of life span here on animals. i agree if you indict again antibiotic in 30 years and for years it might get difference but we now know that is now processing system for animals. let's not go there that you've got to convince any animal the individual animal itself an antibiotic reaction because the tad antibiotics for a long time because the process doesn't go that long. >> with all due respect, i can have an upper respiratory tract infection and take an antibiotic that is suboptimal or not the right antibiotic and in ten days

or less i could have a resistant microbes. >> does that mean you shouldn't take any antibiotics? >> no i'm not saying that. >> debrowski my friend, mr. dingell's question the an lane three this command know, american a veterinary guidelines to antibiotics on animals, that is not my area of expertise of antibiotics to animals. >> then why wouldn't that be something that you would look at as you look at this get smart, know when antibiotics work on the form, why wouldn't you look at these veterinarian that it was the season's guidelines on the judicious use of an ally of picks if it is not your area of expertise? >> mr. wong, that is more of a cdc issued an -- >> know it is, i would be glad to have the question. >> the basic question is we know there is no disagreement about certain things and we should start with those.

first, we know that no one disagrees with the need to treat infections in humans and animals responsive to those infections. second, there are evidence based prevent deaths to the antibiotics that are sometimes needed in the outbreaks or other similar situations. third, there is a clear theoretical risk -- well, there is a known fact that the more antibiotics you give the more resistance he will have. the theoretical risk is whether those resistant organisms that emerge in animals and persist in animals will cause human disease and on that there is some evidence as i have indicated several times that have occurred in europe and there is less evidence in this country. >> but dr., aren't there are guidelines, is the relative processing of most food animals pretty short so the more you

give in a short period of time i would think that the vara area madison guidelines would have more impact than the more you would get over a longer period of time. the processing time or the production time for animal agriculture is relatively short and there are guidelines for the safety of animals and i guess another question would be are you sure you don't make the food chain less safe by not getting the proper amount of additives including antibiotics to animal feed for instance, the question mr. dingell asked appropriately several times. >> to keep plants to make. first is on fortunately for humans, microbes defied a very rapidly and as dr. fauci indicated even the course of the ten day in a diavik course, you can have the emergence of resistance by a variety of mechanisms so even relatively

short duration of treatment may in fact lead to widespread emergence of drug-resistant. second, antibiotics are not in the essential nutrient. they may increase, they do increase growth but they're not in the essential nutrient and there are certainly ways to keep the food supply safe without using antibiotics to promote growth. >> i believe mr. dingell asked you does that usda have the authority to look at animal antibiotics and i believe you said you didn't know or what was your answer to that? >> we said yesterday can't imagine they don't have the authority to do that. there would be no reason why it would prohibit them. >> do you have the authority to look at animal antibiotics? >> i have the authority but not the mandate. that is not the mandate of my institution is to look at animal antibiotics and agricultural issues. >> not the mandate but you seem to have the authority but not a

mandate? >> it depends if i authority someone comes in with a grant and wants to do that it likely would get referred to a different agency. >> but you believe the usda does have the authority? >> i do believe that but don't know for sure. >> thank you, mr. chairman. >> dr. fauci, mr. shimkus and beinart of the opinion that he wanted to answer a question that you couldn't so what you just answer the question? [laughter] >> is this an extension of my time? >> i was almost going to get to the point as dr. speed and i have said several times there is no doubt if you get antibiotics treen animal, a cow or whatever to give them antibiotics and that animal there is unquestionably unquestionably going to be the resistance and that animal. the critical question that mr. shimkus is getting out and dr. friedman answered with regard to make european study is

the question people are struggling with is that if you develop the antibiotic resistant microbes in an animal who's getting antibiotics as a part of the feed is the danger to the health of humans by transferring of that microbe to humans and there is some data that says that is the case the european data to my knowledge and dr. speed's knowledge i don't think those studies have been done in the united states so that is still something people argue about whether there is any significance to that. >> thank you. the gentleman from the virgin islands. >> thank you, mr. chairman. dr. fauci, and as you talk about your institute supports basically research, how much of the research is done at universities and how many of the universities are involved in the basic research or minority serving institutions and do you have any -- well, that is the

question to begin with. >> about 89 to 90% of all of the research funding that we do goes out to universities on the outside. we've funded by grants and contract virtually all of the primarily minority institutions whether or not the of grants and antimicrobial resistance i would have to get back on that but we readily fund the primarily minority institutions in our portfolio. >> okay. and another question. last week with the minority health forum we had a discussion on the lack of adequate minority participation and critical trials and their need for diversity and the translation of research that is being done in this area. is it diverse enough because given the different environments i would assume there are different exposures may be different communities and maybe possibly even different

responses of antibiotics. do you feel in the transition of the research area that you have a good representation of the minorities? >> it varies if you look at the clinical trials that we do for example with hiv/aids because of the disproportionate disparity of infection among african-americans and to a lesser extent hispanics we are over represented and will put to the population but equitably represented with regard to the burden of disease. that for a specific disease varies. there are some kunkel trauner elsewhere as hard as we tried because of the location of whether where the trial takes place or quite frankly of some of the mistrusts the minority community has. >> we are really going to make an effort to those organizations and others to work on that.

thank you. dr. frieden, you mentioned in your testimony that ten states make up the network. this is a similar questions to the states that have diverse populations of the information you get is reflective of the country's demographics? >> yes, it is. they are and it is however this is an area we feel we need to continue to develop to ensure we have adequate representation. >> thank you. and you talked about helping states respond to outbreaks and the cdc has been helpful to the virgin islands and assisting in investigating some of the outbreaks. as far as the hsn are their territories included in that? >> i would have to get back to you. >> if you find they are not, could you see what you could do to make sure that we are if it is appropriate? >> absolutely. >> thank you. and this question is a little

different because there's a certain concern i have had that in the patient protection and affordable care act, which we have heard about a lot this afternoon, there are provisions where hospital acquired infections occur the hospitals will not be reimbursed for the care that is provided and there are a lot of antimicrobial products on the market used to clean surfaces in the hospital and some questions have been raised and brought about whether they are effective and i think it's very important if we are going to penalize hospitals and providers to know that these antioccur deals are being used and facilities are effective. do you have any information on whether that would suggest that they are not and do you think it would be worthwhile for the

oversight subcommittee or this committee to take a look at that question given the importance of it going forward with the new legislation? >> this is a complex issue -- began by asking both of you. espinel the new legislation requires reporting of hospital acquired associations infections and the health care safety net worth. this is something that we believe is and the essential first step in recognizing and addressing infections. for some infections, environmental cleaning may be very important. it may be challenging because it can be hard on the equipment to do it regularly but this is an area where we work with others up hospital systems to identify effective strategies to prevent the spread of infection or to stop outbreaks' once they have occurred. >> did you have any? okay. thank you, mr. chairman. i yield back my time.

>> thank you. the gentleman from illinois, ms. schakowsky. it's been about to get back to the antibiotics and animals. both of you in your opening statements talked about, and the reason we are here, public health problems of increasing magnitude. serious public health challenge posed by antimicrobial resistance. but if you acknowledge this as a serious problem. we know that most antibiotics are used in the united states are used for animals and most of that is used for non-the therapeutic use, mainly for growth of animals. we are dancing around this because there is a lot of opposition. this is a highly charged political issue and there are many forces who think stay out of the farm, leave that alone and i know that. but i am trying to understand why we don't have an answer to

that question if all of this use of antibiotics is going on right now and what people are eating, and we are facing a serious health threat in this country, explain to me why there has not been any research done in the united states that you can cite, why we don't have an answer to this question, and why even if we don't have an answer to this question why non-therapeutic use of antibiotics is so la-de-da if it has the stands to this effect it feels to me if there is a threat out there there are so many threats we can't totally control, but here is one if we know about it as a potential threat how much money are we spending in the defense department and homeland security to defend against potential

threats? this is a potential threat at least, don't you think we ought to find out if this is a real threat? will both of you please answer? >> i think there is no doubt as i have said before that there is a potential risk of spread. there is also no doubt that this is not the only way that resistance gets into the community. we see widespread abuse. >> why don't we try and find out whether or not this is a source of the problem and are there any plans to do that? i have a co-sponsor of congresswoman slaughter's bill. what you're saying is not responsive. >> there are several ways to study this. what we can do is look in more detail. what is currently happening, what the potential additional ways to get more information on it. >> the simplest way to find out, because antibiotics are used in

feed for the reason that you mentioned. we both spoke of the theoretical risk, the unanswered question definitively unanswered is what is the risk. >> that's correct. sprick and you are asking a very appropriate question that how do we get the answer to that. it would seem since there is widespread use of antibiotics in a non-therapeutic mom prophylactic feed for animals growth that the only we could answer the question that you are opposing is to stop doing it and see if antimicrobial resistance -- >> are there no forms which they are not using the -- are you telling me that science cannot determine whether or not this is a risk to human beings? >> no i'm saying you could determine and by stopping the use of it and seeing it in time eckert leal resistance goes down. >> there is no laboratory way,

no possible way to find out? >> i understand your question and your dilemma. if the question is if an animal is given antibiotic in the feed will there be resistance and i can tell you we could do that study the the answer is yes. the question is does that resistance microbe get out into the community and spread into the community? that is not a very good thing to get the answer to unless you stop it completely and measure for years what happens. >> who really? if we are going to test whether or not the fact of resistance bacteria in an animal then can transfer to a human being mean

we can't do it without -- sprick there are several ways to do it. one of them is to look for the markers of resistance and see whether the specific ways that have emerged among animals is found in people in the community. i can just give you a little more information. i mentioned several times the european experience with the drug related to a very effective drug which has been used to treat severe infections and animals and people. it's the last line of defense for many organisms. it's very important to preserve for the use of therapeutics. it was used for growth promotion into the animals in the 1970's and was then gradually phased out and then banned by the european union 1997. it was found community carriage of the resistant strains of a particular pleasure which was highly resistant organism was

quite common before the ban and after the ban gradually decline. that is why we can say that there is strong evidence that suggests that there is the spread between feed animals and people in that environment and that restricting the use to that environment for that antibiotic resulted in a reduction in the amount of resistant organisms in the community. that type of study would have to look comprehensively to see what has been done in this country and what could be done by different means. >> i certainly think that we ought to do that. given the amount of antibiotics we are feeding animals and their for eating ourselves defend that we have this problem. it is shocking to me that this kind of work is doesn't even seem to be on the table. thank you. >> thank you. our vice chair the gentleman from california.

>> thank you. as has been an interesting hearing think you very much. i have a couple of questions for dr. fauci and one if i have time for dr. frieden. in today's hearing we are getting what could be believed to be perceived as mixed messages. one hand there is the overuse than bionics and on the other hand we need greater production of antibiotics as anecdotes to antibiotic restraints of bacteria, antibiotics and of course underneath it all for the provider and consumer education is played the role in all of this. how do you reconcile this messages for the public how do you reconcile the messages and help hour the cdc working to devise a comprehensive strategy to combat an ally of the resistance by educating consumers? >> it is an excellent question. there's too fundamental issues. you are asking the question if we are concerned that and coyot at resistance why we are trying to make more antibiotics.

antibiotics -- >> i understand why. is a mixed message. sprick but i want to try to explain we can get away from the mixed messages by compartmentalizing it. you tried the best you can to prevent the emergence of resistance by the public health measures that dr. frieden spoke about. unfortunately we are in a position where there are resistant microbes that we are up to the last line of defense with one and the most antibiotics that are useful so there is a clear need to feed into the pipeline for new antimicrobial so i look at it as not a mixed message. we need to do two things simultaneously. we need to put the lid on the evolution and the development of antimicrobial resistance and then we have got to have a pipeline of drugs. so the message as we have to get more antibiotics but we have to prevent further resistance. >> do you have a public message that you're putting out for the

public on the of relates to not go and keep asking your doctor for something for a sore throat and that kind of thing, is that being done? i would assume that is happening. from the other side because i want to get at the concern that has been raised about -- i appreciate the history of the story and the the blood of penicillin but the pharmacology, pharmaceutical companies are free much working from or the profit motive to date and perhaps they were when some of these initial an ally of mix came on to the market just because they were waiting to be developed. dr. fauci, can you elaborate on the pathway he elaborated on in your site from the basic research to the private egullet? i would like to know how you are collaborating with private industry in this area. what you know it isn't necessarily the first area that private industry would like to

invest? in other words you really want some antibiotics to fight these resistance and other assistant disease how can we incentivize them to do this? >> i can give you a concrete real life example of how we have done that with one particular finding. since we are involved fundamentally in pursuing and supporting the basic research for concept development we have funded a group of investigators from several centers and the found a small molecule which has the capability of inhibiting essentially any fires that has a lippitt component to its envelope or its outer coating. potentially a really important advance. >> if you've done this at inaki h? >> we find them at a university. they made the discovery so how we are partnering with the industry and the biotech is that

we are providing the resources agents, animal models and the capability to the phase one clinical trial for those investigators and hooking them up with of the biotech companies and ultimately forma to take what was just a concept into something that might actually be a product and i hope this comes to fruition of a product if and when it does we will provide the clinical trial capabilities to tested in people to see if it works so we are really forming a partnership that goes right from the investigator who makes the original observation and develops the concept of through and including the translation of that through the biotech industry. s began to have the commitment from the biotech industry because they see the kind of research you are incentivizing at the university level if you will and so they are committed already.

>> we hope they are committed and stay in the game and that is the point i was making to the several questions. if we can facilitate that difficult process from the concept product by any way we can by making our asset available, other things beyond the control such as financial incentives etc. it makes the transition from concept to product much easier. we play an important but not an exclusive role and that there are other components that have to come in to do that. >> thank you very much. i have a question for you, dr. speed but i'm out of times we will wait for the next hearing. thank you very much. i yield back. >> thank you. the gentleman from florida is caster. >> thank you. i am interested in whether or not you are able to accumulate enough data to track what is obviously a major public health issue, one that has consequences for so many. when i look at the estimates we

have estimates in the number of and while the persistence infections and then we have estimates and the number of health care a seceded infections. the cdc's most recent data is that in the u.s. every year it is about 2 million hospitals related infections and about 90,000 americans die from that and then the other one included in the material in america there are about 94,000 cases every year with 18,000 def death from mersa. do these sound right? is it fair to conclude that over 100,000 americans die each year due to antibiotic resistance? >> large numbers i think the estimate that you gave was 90,000 which is an estimate that has been used before. as i indicated in my opening

statement has been progress where we've seen a decrease of about 50% of serious infections in hospitals to participate in the national health care safety net work. >> how has the data collected for you to compile these numbers and estimates? >> we have two major methods. the one that is more widespread is the health care safety net work that builds on more than a decade of experience working with hospitals and infection control practitioners, standardizing the definitions and encouraging the reporting and now we have 28 states which mandate for her and 21 of them use the nh esen infrastructure to report and about half of all hospitals in the united states currently are on board including many hospitals in states that don't require reporting publicly yet. that report and we expect to see expand nationally the next couple of years. >> why would states not mandate

that and why with hospitals not? >> it is a recent phenomenon so five for ten years ago no state mandated it and it has been gradually spreading. it is concerning to the hospitals. they are worried about reporting from a reputation of risk and the approach has been to make clear that reporting is a good thing because it helps us to identify problems and then address them. islamic with the estimates that you have now knowing that they are not reported in some states don't mandate, do you extrapolate? >> they are extrapolated from both hs m and a network called adc which allows us to monitor the antibiotic resistance to a series of corker infections and a representative sample across the country. >> should it now become a reportable disease? >> certain strands of the antibiotic resistant organisms are reportable. there are some better so common

that reporting probably wouldn't be worth a bourbon and sampling may be more effective but for the many organisms reporting it is something that is recommended by the territorial ophthalmologists and it is done in most or all states. >> it sounds like we can do a lot better but what are you working on or what recommendations do you have to improve the reporting so that we are able to track with adequate data? >> all excellent questions. one of the things that we have done is to try to use electronic of records to extract information which is then validated by human beings. what would allow us to insure that the injections are reported reliably or assess the complete reporting one of the things essential to make that happen is that electronic laboratory reported this summer in a laboratory gets the result in such a in of the medical record and if it did reportable condition it ends up with the

authority which should be reported. we also fundamentally need to make better use of the information so that we implement the programs that we know work and there are some programs we know can drastically reduce the winds associated infections and other hospital associated infections and we continue to generate the knowledge so we can better prevent problems we don't yet have a good tools to prevent such as community associated with its and resistant staph. >> do you want to comment? >> well i wanted to say in my disrespect we have a researcher that is working on the antibiotic resistance and he -- this is the doctor at the university of south florida, and his research is mersa based and his particularly looking at the design and the diplomat of the may sinopec -- minow bacteria

and in the hearing he was right on the point with what you all are saying about what happens from the basic research level and then turning that into some kind of new antibiotic so it is an issue all along with the lack of funding at the nih and the dod. so it is practically nonexistent and we simply cannot get the private companies to take an interest. thank you. >> thank you. gentlemen, mr. shimkus wanted to ask an additional question and then if anybody else does i will allow it because i don't want to have another round but i know there is a great deal of interest here so i recognize the gentleman from illinois. >> thank you. we talked about the cdc and the nih and usda and then through this hearing by remembered that

the copper industry had been working with the department of defense to test copper as an killer -- antimicrobial killer so the epa has just certified the protection agency approved the registration by the cooperative association for the copper and copper allies to make public health claims as being antimicrobial. these claims acknowledge the fact that copper is inherently capable of killing bacteria. have you guys done any look at that? and should you? is that something that the cdc or the nih or is this a problem of -- the federal government is huge and we are doing different things. >> let me try to answer. it may not be the direct answer that you are asking for but there are a lot of elements that can have in time eckert

electricity. the question is to get it into a drug that wouldn't be toxic to the estimate this is making the claim that copper being used on the surfaces are microbes. it's been a good thing that we've had federal dollars to the research in the dod to the department of defense. all i would say is -- >> you want to get back to it? >> the epa has said they could make the claim. >> why don't you ask and get back to us? >> will do. >> do you want to ask additional questions? >> i don't want to keep you because you already waited most of the afternoon any way. but my question and this kind of ties in with what can come in another hearing as well. i would just -- arcuri as if because according to the

national antimicrobial resistance monitoring data and that is a mouthful, about 80% of the meat and poultry products are tainted with some kind antibiotic resistant bacteria. at least that is a study that has been out there. could i use that as a basis affect? >> i'm not familiar with that specific statistic. >> okay. maybe it is -- we will make the assumption since this is a national antimicrobial resistance monitoring system data and they did state at least 80 present of meat and poultry products are tainted with antibiotic resistant bacteria. tainted, i don't know what level. my question was what bacteria are we testing for in our food and are we doing any kind of antibiotic resistance pathogens like staff or mersa, resistant staph mersa, is it possible to

test for any markers or fact this might be in food products? >> these are all relatively easy tested for in small quantities if you want to test large proportions by that obviously there are logistical financial implications. this really is the territory of the fda -- >> understand bebb from the science point of view, and you don't have to agree to the study if it is something -- >> i'm not disagreeing i just -- >> we can take off the table but supposing something like that is true there is the science to be able to pick up the markers were tested with and food products and again i'm not suggesting that we should because we understand this belongs to another department. but there is concern about the spread of madoff and whether or not it is there and there is a possibility some research in another department like the food and drug administration could do

this. >> it is scientifically possible it is a largest issue. it's very difficult for the fda to test broadly and they only have the capability and the logistical capability. a very small fraction. >> thank you very much. thank you to read dr. burgess, dwight barras if you have another question? [laughter] >> of course you can. i would like to hear from one or both of you what are some of the things we see over the horizon just very quickly that this committee should be aware of. dr. fauci, you mentioned a lot of things and sequencing things very rapidly. we would get into the diagnostics part of this and when we talked about the vaccine part of it, but just very briefly what is over the horizon that you buy steel from the daily basis we would be aware of? >> i think in terms of practice to scale up the means of reducing hospital associated infections and reducing an appropriate antibiotic use.

this is something that we have made progress on but we could make a lot more progress, and i have to say because there has been a lot of discussion of antibiotics in animal feed and use for growth promotion feed efficiency that we do not consider use to promote growth and a symbol of judicious use of antibiotics. i think the directions that we are going to our first applied the things we know well to reduce infections and i feel we have a lot further to go and second to continue to generate knowledge how we can reduce infections through programs such as hospital associated programs, electronic health records, reminder systems, control systems that will support doctors and restricting the use of antibiotics and as dr. fauci mentioned quite secure diagnostics which are very important helping the doctor no right there if the kid doesn't have script for you don't have to treat him for strep throat.

>> we may ask additional written questions. we will try to get them in the next ten days or so which is a normal routine but members are free to send more written questions or comments to you so i just want you to be aware of that but i do think you. this is a very good hearing and obviously the members are very concerned about the issue and the work that you are doing is very crucial. thank you very much for your participation and without objection, the meeting of the subcommittee is adjourned. >> thank you. >> thank you for a much. [inaudible conversations]

now, the first congressional hearing on mining safety since the big branch west virginia coal mine explosion which killed 29 workers early this month. we will hear about proposed changes to the regulations aimed at preventing companies from deily and safety improvements. tom harkin of iowa chairs the labor intentions committee. this is just over three hours.

[inaudible conversations] >> the senate committee on health education and labor will please come to order. the topic of today's hearing couldn't be more timely or more important in the wake of the west virginia coal mine disaster the refinery explosion and course washington where seven workers people of the connecticut gas power plant and just last week a blast from the louisiana oil rig often built with mexico most likely killed 11 workers. it is time to focus renewed attention on the safety of our fellow workers. the string of recent deaths and injuries is a grim reminder that to many employers cut corners on

safety to many workers paid the price with their lives. as the son of a coal miner i feel these losses deeply in a very personal level. my thoughts and prayers are with the families and co-workers of those killed. of those injured or missing because these awful tragedies. while there is little comfort we can offer during the struggle time, we can promise their loved ones will not have died in vain. we will learn from these tragedies so that no one has to go to work in fear they won't come home at the end of the shift. certainly the history of the american workplace of justice when we focus our efforts we can do great things to improve safety and health. since the passage of the safety act and occupational safety and health act for decades ago countless lives have been saved in a number of workplace actions dramatically reduced. but we still have a long way to go. every year tens of thousands of

american workers are killed or disabled by workplace injuries and occupational disease. in 2008, the latest available data 5,000 to under 14 workers were killed by traumatic injuries. 5,214 workers were killed by a dramatic increase in 2008. an estimated 50 to 60,000 died from occupational disease. to many workers remain in harm's way and is long past time to strengthen the critical lost that help keep americans safe on the job. one area and our health and safety laws that needs particular attention is enforcement. one of the vast majority of employers are responsible and do all they can to protect their workers there is unfortunately a population of employers to prioritize the profits over safety. and know when we had repeatedly violated the law. that would deadly blast at the

big branch was a classic example of the dangers of this approach. this facility had a record of numerous and serious safety violations including 550 violations last year alone. 515 last year alone. that is 50% more than the national average. so far this year it is a completed 124 additional violations. even more troubling, 48 -- 48 of these recruit citations were repeated, quote, significant and substantial violations of safety standards that operator new or should have known represented a serious threat to the worker safety. the problem of the repeat offenders is certainly not limited to the world of mining. labor and it uses common in many of our most dangerous industries unfortunately the penalties for breaking are often so minimal

that employers can dismiss them as a minor cost of doing business. currently serious violations where there is a substantial probability of death or serious physical harm are subject to a maximum civil penalty of $7,000. for comparison that is $18,000 less than the maximum fine for a class on civil and environmental violation under the clean air act. a criminal penalties are also weak. if a worker dies because of the willful act of his or her employer that employer faces a maximum conviction for a misdemeanor and up to six months in jail. in contrast, that same employer willfully violating the clean water act would be fined up to $250,000 spend up to 15 years in

prison. in other words, this is my point. our laws do more to protect the environment than it does our workers. in addition to putting a real teeth in the safety and health we've to make sure the federal agencies have the enforcement tools they need to identify lions and non-negative workplaces that there are safety records and hold these repeat offenders accountable. we have provisions in the wall that are supposed to target the repeat offenders but they are rendered ineffective. averitt mistaken interpretations or undermined by employers who would go to great lengths to gain the system. there's no question in line like the upper big branch should of been receiving special scrutiny under the pattern of the violation provisions of the safety laws. this is an operator that even in the wake of the worst mining disasters in recent history continues to use such unsafe

practices that just today the mine safety health disorder today that the withdrawal of the miners from three different asset negative 22 hazardous conditions. but as bad as the record was, the law has been interpreted to allow them to continue operating without a pattern of violation treatment as long as they can reduce the violation by more than one-third in response to a written warning. the record as spotty as a partial reduction in the numerous citations is hardly a sign of a safe mine and shouldn't be a get out of jail free card to escape the intent of deval. it's not just historical the week interpretations of the mall to blame, employers also find creative ways to ensure the system cannot work as we intend to read in the mining industry forcible chronic violators have avoided being placed on the

pattern of the violation status and avoid paying penalties by contesting nearly every citation that is against them because msha uses on the final orders to establish a pattern of violations and the average contested citations takes over a year to educate since there are now 16,000 cases buchwald at the federal mine safety and review commission repeat offenders are able to have a pattern of violations that is why can't dustin large numbers of the violations. at the upper deck branch, and for civil massive contested 90% of its significant and substantial violations in 2007. a similar problem is seen in dimond mining workplaces while the backlog is not nearly as great as the occupational safety and health review commission

under the wheat all employers to even have to fix the known hazard until the entire review process completed years later. i think this is unacceptable and it has got to change. so we sit here today on the eve of a worker's memorial day tomorrow, april 28, worker's memorial day, a day set aside to remember the thousands of men and women who die on the job and in our country every year. the best way we can honor their memory is to redo our efforts to protect workers' lives and improve safety and health in the country's coal mines and other dangerous workplaces. with that, i would yield to my friend, senator isaacson. >> thank you, chairman harkin. first of all i would ask an animal skins and the full statement of senator enzi the ranking member of the committee be placed in the record. a little over three years ago just after christmas i got in an airplane with senator ted kennedy and jay rockefeller,

senator bayh deinze and traveled to the disaster in west virginia. got to see firsthand the tragedy of the death of miners in an accident, got to meet first hand with the families of those west virginians that have lost their loved and still have the picture given to me by his daughter who later attended the signing at the exit of office building with a minor act that senator rockefeller and myself, senator enzi and kennedy were proud to be a part of. i take this hearing probably more serious than just about any hearing because when you look at the face of someone who's lost a loved one to a tragedy no matter what the tragedy is you understand the full impact of the loss of a human life and not much less on this committee what to do is anything other than ensure the laws that we have working on the interest of the safety of the miners and make sure that we approach these with very serious study opinions.

in particular, i was very pleased at that time to work in a the leverett way to make sure we found out the determination of the cause before we ran off half cocked thinking by adding the fine or a statute we would improve the situation. i think i correct, mr. main command can correct me if i am wrong but on the day of the explosion there were talking about the day there were inspectors in the mine they were just in another part of the online and which shows you even on the date the problem if the inspectors that are there to prevent the problem with their then there must be something either they need to do or we need to do. however i want to point out because senator rockefeller and i and i am referring here because he can correct me if i am wrong we went to an extensive effort in the mine act to try to target those things we knew we could do to hopefully meet with every person's role in the

committee is and it is to ensure this never happens again. but it's happened again and that is a week of call for all of us. everybody at msha, everybody at osha and in the congress act on. but we should recognize, too, the in for some of the existing law is as important as creating a new law that you think will get at the problem if you are not using the existing law. flexible i want to read a few things msha has the authority to do now. they made under section 104 order an immediate withdrawal of any from any part of the mine or from the entire mind when a hazard that cannot be immediately he stated in danger and miners. i am not about to say that the inspectors there that they didn't know there was something getting ready to happen but they obviously didn't or did have the power to close at. deacons to get temporary or permanent injunctive relief to close the mine or take any other

appropriate action whenever it finds an operator engaged in behavior that constitutes a continuing hazard to the minors under section 818 of the act. if they determine that there is a consistent pattern of significant and substantial violations, they may issue a pattern of violation letter under 104 for which the violations found after the issuance of the better they would order winstrol on the miners from the affected area and they may under the act find violations whereby there has been a reckless repeated failure to make reasonable efforts to eliminate an known violation of a mandatory health and safety standard that substantially and approximately caused or reasonably could have been expected to cause the death of a serious vital injury and the violation can cover a fine up to two injured $25,000. my point is not to say that we have done enough that it is to

say that we have given a lot of the 40 already. and the enforcement of that and the use of that authority is critical if the united states senate reach the goal as was stated as our money the president spoke about the other night to see to it that this never happens again we want to do that in the act and we want to do that today but they are all hands on deck. it's a pretty we can find that can do anything to help us find the causes so we can prohibit the causes. it's finding out all the information of who did what and when and it's taking the authorities that exist making sure they were exercised before we blame it on where you pass a new authority to correct something that wasn't used anyway. whatever the case, the wives and loved ones or the 29 miners of west virginia lost in the most recent incident are at the top of the mine and bottom of our hearts and i look forward to working with the chairman, senator rockefeller, senator

byrd. i think that the congressman deserves a tremendous amount of credit for -- i saw more of him on television and he was there at the right hand of the family. the inspectors and the government officials seem to wait that everything that could be done was done and i commend him for doing that and senator rockefeller and senator byrd for their untiring support efforts to improve the mine safety which is critical to the families that is critical to the great state of west virginia and with that i yield back my time. >> i asked senator rockefeller to join us here and i would like to recognize him for a brief statement. >> thank you. l.i.e. enormously appreciate the attitude of yourself and your colleagues and allow me to be here as indeed you did after the

mine disaster and we wrote legislation. congressman being in the audience is important i just wish that everybody other than those who were there watching in the audience and the author overflow room could have been at the ceremony memorial on sunday which is one of the most powerful and a gripping experiences i have ever had. workplace safety is important all industries but it's absolutely critical in those industries where the risks of injury or greed and the consequences of the poor safety our house of year. sadly we've been there before after the tragedy of -- i want

to be a member but i'm not going to push the envelope. a lot of the members of their at sago that senators kennedy and i will just say in particular senator isaacson and senator enzi were there because they have not been to west virginia before. they haven't been to a mine disaster before and they moved in with those families and talked with them and for the period of quite a long period they were part and parcel and then they became part and parcel of the legislation that we passed. it wouldn't have passed if it hadn't been for senator isaacson and senator enzi and their perseverance as if the had become west virginians. so without increase safety in the minds and pass the miners act which we thought was pretty good. we were reacting to what we have

seen at the sago and it was a good piece of legislation that did improve safety particularly with respect to the response teams and actually the only piece of the federal legislation in the previous three years. which says something probably not very good. but frankly, that legislation was not enough. first and foremost, safety is about a company doing the right thing to be some de true culture of safety. easily said hard to do, something that i want to be talking with mr. main about. we need to find out what is working in safe mines where people are doing the same thing. they may be larger they may be smaller because these are doing the right thing every day and we cannot forget about what it is

about them that allows them to do the same act of mining but to do it safety, what do they do that others don't? and then on the other hand we need to make sure what is not working likewise in more dangerous minds, why do injuries and deaths occur their whereas they don't in the mines that are watched over more carefully. because the mine operators show no regard for safety should not bail out to gain the competitive advantage because some are being very careful and very specific in the way they try to do the safety and the right way and others aren't and the sad fact is in the coal fields which are remote, far distant in this case senator isaacson even more distant than sago. way, way back in the hills of southern west virginia cities of federal and state governments stepping into but i think

toughening of the laws where appropriate. i don't disagree with what you said, senator isaacson, but i think there is room for improvement, and we sort of react to the latest mine disaster. is that a good way to do safety legislation? i don't think it probably is that it is a heck of a motivator and it makes us do things we might not otherwise have done, and so we need to grab the spirit of the moment, the sadness of this moment and do our duty. ..

>> hof and then budget and it has to follow that. we need to add the loopholes and we know what that is using the appeal process because that way they can go

ahead and minuses they don't have to appeal to pay the mind taking keep doing what they are doing and that does not seem right at all. we also need to improve msha enforcement effort that the authority msha must meet and it must not be shy about this. it is a culture that it is different than the last time we did legislation about such things as the subpoena power over all the more far-fetched but not out of the ring enhanced criminal penalties. number four. also more work to do to protect whistle-blowers. i believe in whistle-blowers not irresponsible whistle-blowers who just had a bad week with their wife and their furious and want to cause trouble but there

is nothing in me that says we cannot find a way to separate those out and taken not just of the 1-800 number phone calls that are removed but make the whistle-blower system work. mr. chairman i thank you for letting me come here and i look forward to this. >> thank you very much senator rockefeller and my personal thanks for your great leadership in so many areas but also this the day care so much about. and others have been mentioned and congressman rahall is your and the audience represents that district where the upper big branch disaster occurred. i served in the house of years. you are welcome here congressmen rahall if you'd like to join us at the

podium however you feel. >> thank you. let me just say it was part of the record in its entirety alaska each of the witnesses if they could sum up in five minutes their testimony. we have three different panels of i am not mistaken. four different panels and we will start first with mr. chow mein who -- mr. main excuse me. let me get my paper straight down. assistant secretary of labor for mine safety and health and your statement will be made a part of the record if you could sum up and five minutes i would appreciated.

>> chairman harkin ranking member in the and members of the committee thank you for inviting us here. i wish it were different circumstances i do want to pass on words of appreciation for senator burr and rockefeller and others who spent a lot of time with us at the upper big branch mind during some tough days and shared with us with the difficulties that his face when you have an emergency like this. several times per day we had to call the families together to give them bad news or news of hope but never good news. that takes a toll on the family that no one can never appreciate or understand. that is what helps me with the job that i have to end to that kind of grief in the coal fields of this country but i do appreciate all of the support we had from the

folks here during those difficult days. i also express my condolences to friends and family say coworkers who perished in the upper big branch line in my wishes worse speedy recovery for the minder who is under medical care. also the other injured minor who has been released from the hospital and our prayers are with them all but as the president said we owe them more than prayers but action and accountability and they ought to know there is a company that is doing what it takes to protect them and the government is looking out for their safety and remind the committee we do not just look at the mining side. it is workplace safety. in 14 workers lose their lives every day by just doing their jobs. fatalities and coal mines

are preventable. explosions in coal mines are preventable and the tragedy of a per big branch should not have to happen. april 5, to 10:00 p.m. the explosion occurred taking the lives of 29 miners and it keeps -- through today and forcing presence at upper big branch inspectors were on site 934 hours increasing up by 1854 hours in 2009, double the amount of time. doing pass the inspections there was an increasing number of violations and citations including significant and substantial violations. september 2007 it would be put in pattern violation status but yet it was able to avoid that by reducing the level of violations and

again it had a significant spike in 2009 it was issued 515 dilate -- citations. 2009 issuing 40 withdrawal orders for repeated violations and 19 times the national rate. just other massey mines had more citations the department of labor established one of these is a pattern by later. it will be the first mine placed on the status since the passage of the 1977 mining act. in the wake of this tragedy we know the weaknesses even in our strongest tools. the most important changes are needed to make responsibility for those across the country to reform the pattern of violations of the programs.

and those are most effective but the policies of this said ministration inherited make it easy for operators like massey to avoid the pattern of violations status prefer use a tactic for the potential pattern of violations status of blocked msha from putting them line in a potential pattern for over 500 days. with a two year history use over the process another 500-- you look at three years for the start of the problem. the current system allows operators to reduce the violations by 30% in 90 days which is the formula. the upper big branch mine did this and avoided the pattern status. in terms of reform there are steps which taking. the regulatory agenda focused on regulation the

required companies to take responsibility to find problems before there were discovered. what we call plan prevent protect system, looking at the catch me if you can approach. some regulations we will be talking about. we are soliciting information and use of comprehensive safety management programs and plan to reinstitute examinations for violations of mandatory self -- hazards that was from 1992 currently in the original coal mine and safety act. regulations are also planned and in addition looking at other tools sooner for the provision to seek permanent or temporary his injunctive relief. we need predatory regulatory and legislative actions.

although the commission adversely impact the process we are fundamentally and severely reduce the deterrent value of the penalties. there are more than 60,000 cases pending before the commission we should look at the 27% increase to provide sufficient personnel to quickly resolve disputes. in testimony on very 23, iowa and some specific measures to address the backlog problem that include simplifying the determination process is improving it exist of the corporate ride in the implementation of meaningful health and safety programs. federal prosecutors need more to investigate. unlike other agencies, that enforce federal law giving way to subpoena testimony as part of the investigative process.

criminal penalties must be enhanced so the threat of jail is real for the worst offenders. violations of key standard laws or safety laws should be felonies and not a misdemeanor. most importantly we must prepare the miners. they must be able to read -- rates valid safety concerns without fear of retaliation. with afford to working with a committee to strengthen whistle-blowers for minors prepare i think is necessary for the current statutes and regulations and policies and ask what more can redo to ensure the health and safety of america is miners? mine operators everyday run safe operations. they come back every day and harm to, free of bonus and free of death. that is the standard we need to put in place across this country they have a right to go home safely after every

shift for our look forward to working with this committee will be happy to answer any questions that you have. thank you again mr. chairman for calling this important hearing. >> thank you for your leadership mr. main. you said taking a look get regulatory changes that would simplify the criteria for the pattern or violation of the program. if you don't want to get into all of that no zero days now or to submit to to us that are the changes you can do that we don't have to address legislatively. if there are things you can do to release the burden so we can focus on what we need to do legislatively. if you submit that later on? >> i would be happy. >> we

will do that. >> thank you, mr. chairman. and also mr. main to testify for all of the work you and your inspectors do. do know if msha has ever saw the and should do relief to close a mine that was deemed a continuing hazard to minors? >> in terms of the objective relief, i think we're about to pursue is the first time in the history from what i am told from the legal department. >> but it is true your behalf of injunctive relief? >> there is that exist that talks in part about being part of the pattern of violations and there is some language that will publicly be tested but there is a provision that before we take the test, there may be need for congress to take a look at remedy any

shortcomings as we move forward. >> today to have never use the power that you do have? >> that particular power in my history i do not believe that is the case. >> the statement of your remarks and pre-printed testimony, third paragraph, page five you cite a spike in violations and refer 2515 citations filed 2009 and 124 in 2010. just try to figure with those violations would be a divided that number into 1.1 million which is the amount you said those fines would accumulate that is $1,725 average nine per 625 violations. then i went to look at the authority that you have got

on file and under civil penalties you have up to 50,000 on standard violations come a 220 arnhem flagrant and 5,000 per day on a failure to correct, a 250,001 a criminal willful violation and 500,000 on a repeat of willful violation and then $10,000 were five years in prison for making a false statement to authorities. if i take those numbers of authority and talk about serious violations it would not take a minute to get to 1.1 million but yet you issued 639 violations in the 15 months point* where most of those like i iraq or a miner smoking something like that what were those?

>> other than smoking, i am not aware. the most often were ventilation problems combustible material and things of that nature. having been on this job for about six months trying to figure out how the components work and looking back to enforcing the tools the agency has during a course of that spike to understand the whole penalty process, one of the things i came to realize is that probably the tool that is most effective, is the ability to shut down a facility to get a problem fixed. i think looking at what the agency did over that period of time they ratcheted up the use of that much more than normal. i think that is why i have

the most of any mine in the united states as a shutdown order. there were 48 issued act the upper big branch mine and those statistics showed me that had the most. it has been my view over time that the quickest way to get something fixed is to stop it and fix it. we do need to fix the penalty system no question about that. the contest process has really crippled the implementation of the actress some great provision put been in the new miner act. that is the reason we have looked at some of these tools that do with the whole process and one is the injunctive action that we

really need to put a news as opposed to later i was asked a simple question why didn't you shut it down? if you look at the borders or the tools it is designed to find an area that is out of compliance, of course, the operator to fix at and then go back into compliance. as far as a tool that is really meant to lay out that encompasses several standard syli when you can have is the pattern of violations used the patterns of 77 dead is the heaviest that has been in the act since 1969. we need to do something quick which in turn to relief is the best tool we have looked at and we need to fix the pattern problem

that people respect to have a lot plug in to reflect after the disaster in 77 that congress really thought would fix the problem. of the application was undercut the wit 33 years without one mine having been placed on the patter but that may change going forward. as we look at the pattern of prior to the upper big branch disaster this is something we talked about at the house sharing in february, the system was broken with respect to how difficult it was to put blinders on that had a trouble compliance is -- history and how easy it was to get off. although you contest the violations, and there will be several loaded but scheduling a hearing will be

a difficulty. it still will be if we don't fix the side of the problem. be getting offside they do not put on notice but if they drop their assonance three schrute for a short period of time they can can offer cry have saw negative that were twice over identified as the pack turn minds. but i think if you go back to the mid 90's with fischer appeared of time recently 2007 is the only period of times that it was ever utilized as a tool but what we aim to do with regard to my testimony in february and now is fix that. the 24 month history is a problem of held hostage is a problem. how we select the mines and need a better identifier of

a formula of the computer error was found. one of the issues i think we have to go back to make the system work and to make it work you have to have a process in place that effectively identified as those mines that has a troubled history, quickly dealing with applying the pattern and make it tougher for them to get off if you believe they got there in the first place because they did not have the hall's safety program, one bard -- logical assumption for them to get off they have to have a program that does that. but just over 90 days with the violations but fix it so those miners could have comfort. another issue is the subpoena issue and there is a story today over three

other mines that made inspections recently. two of them before big branch and one after. all three of those were triggered by an anonymous complaints prevented miners make those? some minders did this to mike there was some specificity and worried to make a whole. plan we went in we found illegal conduct the you would not think we would see their today. only found because when the inspectors got there they captured the phone so von operator could not call underground. >> i hate to cut you off but the chairman is about to have day if it. we have went to over. you want to replace hazard to minors since the current junket relief is that what i heard you say?

you are allowed to do it if you say a persistent hazard to minors? what i was trying to understand, you would like to expand at or change it to the pattern of practice for the mine operator? >> we want to work with congress to fix that for what we need to do to change that language. >> senator burr wanted to attend. he is unable to attend if there are questions he wants to ask a will submit those for the record. but we are privileged to have senator rockefeller here and just but senator franken unless republicans and we will go back and forth. >> mr. main 26 pages of

violations with what we have been dealing with and they take place only since january 1st, 2009 saw a relatively short period of time and all of these violations, not constantly you run into the mine ventilation plants. dust control, all of those combustible materials all things that are just speaking of something about to happen. my question is, we sit here fixed on the pattern of violations of what should it be are not the but why isn't it possible for one of your people, a federal inspector, a trained, that when they come upon such a thing, maybe a quick phone

call but they have the power to shut down that portion of the mine which appears to be effective that is for real they carry violations and part of the problem which is msha was working out the appeal process. but some of these decisions that went to apply msha is a bureaucracy but to have individual folks that are well trained, professional mine inspectors they see those problems most of them worked in the mines it is hard to ms. combustible materials when you look at it and hard to miss a violation or ventilation problems when you are feeling it. why can't they take action?

why we have to go through this enormous thing leading into a pattern of violation that has never been used? >> probably a good way to start this is what the tools are that the inspectors have and i don't disagree with senator rockefeller you will see tools that will exist but if you look historically i will take an easy one. a situation where you have a miner that is not permissible that means there is a component on that piece of equipment that has a gaap that houses the electrical components that a tiny spark could get through and start an explosion. this is something we have

that we want to talk about, the commission decision over the years have defined those standards to the point* it is very difficult for that inspector to cite those conditions as a serious violation. when i look at the latest standards apply you almost have to have the explosion occurred to have a serious violation in that regard? the way the standards are interpreted and applied in this country over years of litigation through the review commission. but when the inspector goes to the mine they have full authority to use their tools of their disposable if they determine a condition of limited danger until the company fixes that specific problem.

>> but ventilation is no mystery. the dust is not a mystery. you can taste it and smell it and read them. if that is a condition that one of your inspectors of fines that he cannot simply close things down for a period of time so that that can be fixed? >> in the past there is a weakness in the enforcement with the way the law was enforced. going forward to utilize tools and our position during the recent sweeper mou kicked off after the upper big branch to make sure we do not have another a per big branch out there.

we had six mines that were shut down because the tools of the tool beg were more use them they had been over time. once the company has fix those. >> i will interrupt you write here for just a second. msha may seek temporary or permanent in june to relieve to close the mine or take appropriate action whenever it finds in operator to has a continuing has cylinders section 18 at a. you said you have a desk, explosive hazard, that is not even a question. why can't you use at and why hasn't it ever been used? >> yes. and has not been use. >> why? why? >> it is a good question.

>> who can answer it? >> i cannot speak for past administrations but we will use it. >> i sure hope so. if nothing else comes out of the hearing you will start using that. sorry to interrupt you. i wanted to get that issue taken care of. i'm sorry to have interrupted you. now let's go to senator brown. please keep in mine we have three more panels. >> senator enzi was next. >> thank you for joining us and the other panels for the mine workers and citizens tomorrow is a worker's memorial day to honor the men and women that were

killed or injured on the job and in my state alone on a one-handed 67 workers died nearly 119,000 injury claims were fired. before my question i would like to share a quick story that i shared with mr. main when he was in my office. a depiction of the canary in a birdcage pritzker privity knows what that is about to signify the importance of worker safety and all of the other things that come with that. the question i have this year mentioned in your statement that msha has limited tools to hold back tears accountable to force companies to change behavior. you issued a withdrawal

order to stop production but their own views when conditions present at imminent danger. isn't that too late in order to make a withdrawal necessary to prevent disasters? >> there is for basic tools the inspectors have. one is a citation if it is not corrected within the time given it would b.v. be close your order. then the been in danger weren't the inspector observes a condition to be imminent danger is they could shut down that area for corrective. we have the 104. >> guest: order that conditions are serious and willful violations that could be cited first as they

citation then as the order then it closes down that area until that is six. i guess what we call the d-1 series on the inspector finds a similar violation violation, but with the 48. >> the other provision is 104e pattern of violations that is a long process together and a system that is broken. the in june to relieve that -- action the something our folks were taking a look at and we fully intend to implement that. it is the one part that gets to the broader application. we're asking congress to take a look at that to

presume there will be some challenges to that to look at those pieces that may be troubling we will take the first-run and using that to the courts but that is why we hope to have support from congress. >> i guess i want to get more specific, i do think the withdrawal orders is it too late? is city now face a lives? >> we're looking at a number of things that i think we have to do to fix the problem but figure out a way to prepare the miners for the report and how we can empower them to take actions to protect themselves. that is the issue front and center but if you look at tillage recesses the order in my opinion is the

whatever the end results, it will be a lot warmer point* then having your college worked out. >> i assume that is more power. you want to reward and point* out the violations. are union mines is safer than nonunion mines? >> i think if there are worker representatives in the mines if they have a chance to free the exercise that right that congress gave them and there is absolutely no thought in my mine otherwise for the mine operator allowed workers to have a voice of safety and freely exercise that.

>> senator murray? the may figure for having this hearing to recognize the men and women we have lost from our job to talk about to make our workplaces more safe and healthy all went to express all of my sympathy across the country. to do is ago i was in a court of washington came to the memorial service for the seven men and women who'd died at the refinery preferred dan aldridge, matt, deron, lou and captain power wall an overwhelming event and i know all the families here are suffering terribly and i what to say all in this room and in the overflow room, i really respect your courage to be here because i know nothing we can do can bring

back your loved ones but your courage coming here today being in the audience really helps to push hard. we personally want to think the families that are here today. i have questions coming up promotion of but i do want to ask, mr. mains, we have worked i noticed on april 22 an article from "the new york times" about how to negative show how practices outlined in and out it had to separate subsidiary of massey the inspector of daniel was said massey mines were some of the most difficult lines to handle " inspections that should

have taken one datuk three because of first it would be spent arguing over operators over paperwork and permission to enter certain sections of the mine. do msha require the operators permission to go into a mine? >> no. >> and what is the barrier for the inspector to get and? >> i am not sure what happened in this particular case. out having been inspections there are different ways the mine operators operate. some work with the process and some use tactics to delay the inspection process. there are times when inspectors have to take extraordinary action for the right to go to the mines but does not happen often. in most cases they go through the normal process

but if you couple what was raised in that situation with three recent inspections three report to don today you'll get some ideas how some said the operations and others do not. still meant we have to look into more details but i can appreciate. >> we need to understand or know if there is something we can do and a lot to make sure the inspectors getty and. in your written testimony you talk about massey energy having a large number of citations. how does that tactic help operators with patterns of violations? >> for the cost of a postage stamp they can file a request to contest the violation that goes into the

process that is adjudicated. right now we have 16,000 case backlog and years to resolve those backlogs and until those particular violations are finalized by the court system, they cannot be counted as the operator history. >> is there the increase penalty four contested violations? >> no. >> is there any disincentive? >> one of the things we're looking at this a third disincentives for those operators to try to gain the system. there has to be a process as all of the issues get resolved to deal with that. but currently. no. there is not. >> you put your finger on it they get a backlog until they get a final

adjudication -- adjudication msha cannot do anything. >> with 16,000 the not concerned over the safety of the mine workers. >> like to associate myself with senator murray's remarks and think the family is were being here to bear witness and to make sure this does not happen two other miners and other families. do you think anyone reads your testimony about the number and nature of the violations by upper big branch line and by massey would be shocked.

i am wondering, is there something along with the law or coulter here? i assume there is no love lost between msha and massey. but, you say that the mines have stayed open and have been held open because of the way the law was interpreted. my question is, by whom? even when there is dust, a violation if and gas leaks this is what we expect to cause the explosion. the way the law has been interpreted it will keep them open even in the face

of all of these violations to interpreted the law that way? >> there is different litigation that has happened that has led to the current application. the historical applications have been developed through the commission and that is one of the reasons we need to take a look at some of the provisions better at the center of the universe for limiting the msha ability to use some of these things and appointed earlier the notion of a promise ability violation review have a piece of equipment that has a gaap only takes a spark to

blow up a coal mine at ast to go to an extraordinary step before you consider that a serious. >> i am sorry but you are saying that the courts? >> guess there has been litigation over the years of has refined the definitions of the application of the loss. >> these are federal judges? >> federal review commissions. >> there are some areas we're looking at for relief we may be looking at legislative leave him we need a chance to discuss with the committee one is to redefine the significant and substantial issue. another is on a failure of the part of the operator to address a safety condition. those based on my view has

been constrained to the point* if you look at the one-third of the violations looking at the period of 1980 you look at 80%. i am not saying that is where they should land but over the years, that is worthy application have settled and to change that we need to change the definitions to identify which standards are serious and which are not. we have a number on the table to take a look at to try to figure out what reforms. >> what is the us s? >> it derives a moral failure and equalizes the

those of have to be significant and substantial. >> we have three other panels and another question i will submit to you. you say you want to the minors to be empowered. there are some miner representitive systems where they can participate point* but only 2% of that and i 19 but i will submit that in writing. thank you. secretary? >> mr. chairman. >> we have been joined by the ranking member senator enzi. >> i appreciate it senator i six and sitting in for me and putting my statement in the record and they do understand the upper big branch line is the worst accident in 20 years that to 29 people lost their lives and they appreciate those who are here and our

sympathies go out to you. and as you may know i represent other coal mining states and being able to save remind our national resources is important to the people and data so i work with senator rockefeller and senator burr to write that minors act 2006 with the string of tragedies that occurred that year. it is very frustrating to hear of activity at this mine was over 500 violations 100 so far in the current year and a significant amount were unwarranted failures the last two years how many were requested to be removed because of hazardous conditions? there were 180 days there in 2009 but nobody from the regional office made sure it was put on the potential

pattern of violations status as it should have been brian know it was put on a probation status and a move quickly to reduce and improve the safety record and i also know compared 22007 msha has more inspectors and a larger budget. i will submit a series of questions that deal with us. i will not take up more time knowing we have three more panels to go but i think senator rockefeller for all of the action he helped us to take one of the fastest times we have never passed a law in congress and i know from the oversight hearings that we did do a lot of those things and that we had more covered. we do expect agencies to report when they do find something that is not

covered by the lot that needs to be. i will have those questions to dig deeper. thank you for being here today. >> host: thank you for your issue. >> and please think secretary solis for her help on this and heard great interest to move this forward. we have talked on a couple of locations and she wants to get to the bottom of this and change things. >> now that will never happen. >> he has been president of united mine workers since 1995 a sixth generation coal miner who has devoted his career to better life for miners. from west virginia technical college 1987 received an honorary doctorate from technology in 1997.

then we have mr. geoff harris a third-generation miner working in mines for more than 30 years and currently employed at the harris number one mine in boone county where he works as the roof boulder who pins the underground roof of the mine to keep it safe. next we have mr. addington dead deputy director of the appellation citizens law center. fighting for justice and the coal fields by representing coal miners and the families for black long. also director word the project and he got a lot from the university of kentucky and lastly, than national mining association for regulatory affairs his responsibilities include working with member companies for use in a mine

with federal and state regulators with the safety and health programs also serve on the executive committee of the national safety council and various planning and committees 219 from occupational safety and health before joining it usa assistant to mr. rahall from virginia park a welcome you and thank you for being here. the statements will be made a part of the record in their entirety i would appreciate it if you would sum it up in five minutes so we could engage with rounds of questions. mr. roberts will come back to this committee you're no stranger to us and i know you have been going through over the last several weeks. thank you for being here. >> thank you very much mr. chairman and want to thank you for holding the

hearing today and thank the committee for the work you did in 2006 and thank you for the compassion you have shown over the years to coal miners involved in tragedies. we're very thankful for the legislation passed in 2006 i want to think senator rockefeller for his lifelong commitment to keep coal miner safe and also senator burr for his hard work for many years of this particular issue and our friend to was here today not only in this instance for hard work, i also want to recognize family members who are here today, they are here and the country of what i don't have to do this again for the rest of my

life is my hope. so to enter the world service i said i hope this is my last one. but they were my friends. my neighbors. i have known some of them good day that is one of the most emotional things i have been through in a while. [laughter] >> as we come out tonight too just say no those in the last four years of their preventable i want to say something that i firmly believe there with my heart that this tragedy never should have occurred and i will pick plans and the only way it will if it was in compliance with the laws written and updated 1977 and it would have been

impossible to stretch what could have occurred. pointing at one other thing, we avoided one thing. why is it we have operators in this nation that will practice this kind of mining? we have coal companies on coal river and login county for 100 years. i defy anyone to go back and see where peabody has a tragedy where aramco had a tragedy and it never happens. so upper bay bridge and i want to report. those miners that work at massey are scared to death and intimidated and run like it was 1921 not the present day. that is the truth. don't take my word only for the miners but the communities are intimidated prick of the people of west

virginia have had enough and they're about ready to stand up and take a position. but my position when you talk about criminal prosecution , now is the time because people who knew this was going on, no question in my mine to the people at the very top and the board of directors was in discounted shape, the owner of this company and president ceo does not live 1,000 miles away but louis in the coal fields every single day and fear and intimidation is the role. let me tell you we have to understand when we have people like this and we should own the federal government but unless they tell you, a company can be allowed to put people in this kind of a position? congress should stand up and take a position we will not tolerate this. this is the united states of america prefer not china or

columbia but u.s.a.. the mother a letter. 25 years old road to his mother and fiancee a letter and the young baby who might happen to meet on sunday and said if i die in a coal mine please tell everybody that i love them as direct that is used to write and that is the kind devil others and the letters not the time they're supposed to eat thank you back to work for the united states of america. domain mentioned some of that the president obama is sinned for the first time in the history of this country price of it to you. you can hold accountable if you should but it will not be long before they say he is too tough on us.

i am putting you on notice that is what will happen because he will enforce the law and msha will force the lot and coal miners will be safe. today i am sending of letter to hilda solis is time for a seventh public hearing on this situation because they do have subpoena power. >> anything to do with his strategy -- tragedy spin a but what happened in private? >> those that were the most effective, things of powers can be issued i know i am emotional and have gone over my time. but i would like to invite all of view, this is the worst days not the worse they have there are three others in worse shape and is. i am sorry i got carried

away. i must tell you how i feel about this. thank you. . .

and what really concerns me with the panel i want to appreciate it ready for being here and the families and i really sickened by what this went on and the reason i say what i say is i worked at the mines and the ones i worked at they would take until they got the right one -- the new detectors and everything read memory and they wouldn't turn them in. but when i first went to work everyone told me about it and i said no it can't be that bad i went there and worked at the big branch lines when the inspector would shut the minds, i went to

work for. when they would shut them down but transfers to the different minds didn't matter if you worked there or not that is where you to go on, you had to live out of your car. when to the big branch lines never knowing nothing about the mines went into the minds and they would never give you a safety measure. he went up on this section and the first thing it said is that is york machine. if you went to the roof over the first thing they would do is turning the ventilation curtains down to event lead and i heard senator rockefeller talking about the degree and stuff that creates the explosion. when an inspector which wampum the property they would shut the section down. they would drop down and get the debris away that could be an

explosion. as soon as the inspector would leave the property that to get back down and start mining coal and it's impossible for you to negative 600 come 700 of coal and and and our period at a coal mine and do it right. i worked in a union mines. we try to do everything right. and we do everything right. the company wanted to do everything right and it's just not -- it's not fair to the minors and let's say i worked there and talked to those guys and i am not telling you what someone told me and i try to get these guys to understand we need to stand up and you know what they said? if you won't like you get out of here because if we stand up, we all are fired. and that is the way that they operate. i worked on july couldn't take it no more. my wife would worry to death and i fear for my safety the whole time i worked for them and i quit. i said i would starve to death first. and it's not right for a person or a human being to have to go to work under those types of

pressures and to the job. it's not right. have people have gotten hurt. they will let you come to work from filing an accident report they would put you on life to be and what to stay in the bath house to keep from filing an accident report so we would go against the mines. it's so much we don't have enough time to tell it all. but it's not fair. this is america. we shouldn't have to live like that. on my committee of the lines where i worked on the safety committee and i have as much -- i can tell them to shut the mine section down if something isn't right and we are going to fix it. the man there don't have the right. it's not right spirit >> thank you. a very powerful statement.

that's why is always good to have someone like you who is out there to get their hands dirty and goes into the mines and can tell us what it is really like. mr. addington. >> chairman harkin, members of the committee, thank you for allowing me to speak today regarding the health and safety of america's miners. negative west addington and i am an attorney at the law center. and nonprofit law firm that represents miners and their families on the safety and health issues. at the center i operate the safety project that works to improve safety conditions for the miners in the coal fields. premier li the minds if the project represents the miners that suffer workplace discrimination for making protective safety complaints. unfortunately, i am before you today following a mine explosion west virginia that claimed the lives of 29 miners. massey disaster now becomes

synonymous with death and the coal mines like the recent disasters before it. crandall canyon, darbee, and sago. it's not only a crisis is a natural this case. my father was a kentucky coal miner and the father before him and all four of my great-grandfather's were miners. congress is opening declaration in the act of 1977 the the first priority and concern following the coal or other mining industry must be the health and safety of its most precious resource, the miner. however moving forward the miners also be our most precious resource in any strategy to improve mining safety in america and prevent future disasters. the miners best know the conditions present in their minds more so than even the inspectors or operators. miners watzman can provide invaluable information to federal regulators working to ensure the protection.

chris realized long ago that the mine safety were generally improve to the extent miners themselves are aware of mining hazards and play an integral part in the enforcement of the mine safety and health standards. we have to reach the point in this country that the miners without hesitation report unsafe conditions. however, are the recent mine disasters and scores of individual mining facilities show this is not happening frequently enough. unfortunately, in too many mines miners the complete about unsafe conditions are harassed interfered with or even discharged. many miners feel those who complete are also part of our protected to the degree envisioned under the mine act. understandably then, an experienced and skilled call miner often quite a bad situation and find a new job elsewhere rather than asked the state mining and force the agency to investigate and remedy the unsafe conditions. thus the federal government has to do a better job of

publicizing the miners' safety rights and increasing their support of the miners to exercise the rights. i know my time is limited here but i would like to point the committee to my other topics of interest that i plan on talking about today which is increasing the frequency and quality of training of miners' safety rights and full-year on violation notice. what i would like to talk about really briefly is representatives of miners. representatives of miners are working miners selected by at least two others to represent them in safety and health matters at the mine. miners are granted a 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 the safety and health. the of the right to a company inspectors during the inspection of the mine for the purpose of

aiding such inspection and to participate and pre-and post conferences of the mind. they also have the right to receive a free copy of any order, citation, notice of decision that is given to the mind of the raider. yet with all of the inherent safety and it hinges of the rights system offers to the miners is shockingly underutilized. the freedom of information act response revealed in 2008 more than 90% of 249 call negative in eastern kentucky district number six didn't have one miner representative. only four of the 249 had miners represented. one reason for the lack of the miners reps is miners are often interfered with order fleeced discouraged by the operator that they show an interest in becoming. one of the current clients was discharged from becoming a representative in his mind. the interest to devote special attention toward increasing the number of miners reps and i

would encourage congress to consider a change in the law to require on every shift and every line to aid to ensure the substantial safety protections gainedou you. >> thank you, mr. addington for the selection. we will get it seriously. mr. watson. -- before, mr. chairman for the opportunity. before turning to the topic of this hearing, let me again expressed condolences of the entire mining communities to the families of those who tragically lost their lives of the upper break to the cadet branch lines to recover thoughts and prayers are with all of those touched in this tragedy and our heartfelt thanks goes to the rescue team members who worked so tirelessly to recover their full negative 3i come to assure you we will join with you to find out what happened at the mine and why it happened. we do not accept that the mining tragedies are inevitable. we join with others here today to ensure that from the tragedy

will emerge stronger resolve to do better. what we have tried so hard to do well. the understand the significance of the challenge we face to bring all miners home safely from their important work. this is the responsibility that we to all of those that work in the minds and we owe those the parish of the upper branch line. my safety is an operator's obligation and must be the highest priority but both operators should have a shared responsibility to ensure safe workplace. it is this shared responsibility that led to the dramatic improvement of the last two years where we achieved all time historic lows in terms of the number of miners who lost their lives. still too many of the record was improving. several scenes have emerged since the events of april 5th and i would like to address three the the most relevant to this hearing. first is the question of the adequacy of enforcement

authority provided in the mine act, the quality of workplace inspections and the appropriate application of a full range of enforcement authority provided in the law. second is the backlog of the cases pending before the review commission and whether these appeals jeopardize miner's safety and health by preventing speed from additional sanctions against operators. and third, whether the 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 as an analysis demonstrating how the enforcement authority under the mine act goes well beyond the enforcement authority provided osha. mines are subject to mandatory inspections. inspectors have warrantless entry authority. authority to withdraw miners from any area for failure to cite conditions for failure to comply with mandatory standards and when an eminent danger is

present. the enforcement powers under the act or extensive. the need to be used when conditions warrant rather than broad lease supplement it. 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 miners north mine operators. we want to assure you that we are ready to take the steps now to correct what all agree is a dysfunctional citation and appeals process. unlike under osha, and appeal under the act does not required to correct the alleged violation. the at the first and contest leader role of the act imposes immediate and substantial obligations on operators to eliminate what they're valid or not to proceed hazard that gave rise to the condition under which the citations issued. some believe the ' results from a deliberate attempt by some

operators to quote the adjudicatory system to prevent the agency from placing a mine on the pattern cycle even if one were to accept this there is without question the ability of the agency to take additional enforcement actions. the imminent danger authority which was discussed earlier is available and on like the pattern of 40 it doesn't require even the finding of a violation of a mandatory standard. it is far more powerful than the pattern tool but is infrequently used msha also has authority. the fact is congress did not limit the speed 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 our view of the strategies for improving performance must change. last year 86% of the mines in

the industry work the entire year without a loss accident. enforcement contributed to this record. it's necessary that in and of itself is not sufficient. we need to place renewed emphasis on the risk-based safety performance through programs that share the best of the best and safety performance with the entire industry. these are vital components of an effective safety effort that go beyond regulatory enforcement authority. to perform the year after year recognize the need to go beyond mere conformity with full law. the understand the regulations alone aren't sufficient to bring about continued improvement. it's time for all of us to recognize culture, leadership, training and other organizational behavioral factors influence performance. to the extent they fall short, regulators provide a needed and necessary safety net. regulators and mine operators must stand apart but an adversarial relationship not be

a hostile relationship as we seek better ways to improve miner safety. thank you, mr. chairman. >> thank you free much, mr. watzman. before we start a round of questions still people here had photographs of their loved ones who i think lost their lives either in the last even or maybe some previous. you've been very kind to come here. hold up those pictures so we can see who these people are comedies real human beings. hold them up for us. are these all people who lost their lives in upper big branch? others? thank you for being here and for bringing those pictures.

mr. watzman, let me start with you. you point out in your in to the eckert is the money that speed had the authority to withdraw on the spot of the sea imminent danger. that sounds all good doesn't it? sounds good but it it depends on the inspector being there to the right place at exactly the right time to prevent. well, how can you do that? you can depend on that. it seems to me someone has to be at the right place at the right time to prevent an imminent disaster. so it seems we need to be more effectively after the ability to more effectively target the operators that have a pattern who routinely -- who routinely put their orders at risk to stop them before they become an emineth representative. i do disagree with your suggestion that the eminent with straw authority that accomplishes the same result as the speed's pattern of a violation authority. in february of a hearing before

the committee on health and education lubber use it in a cultic pattern of violation is in the law for a very valid reason. it is there for a valid reason. it's just that it's not been used and there are probably some legislative things that we need to address, mr. rockefeller, and making sure that pattern can be used more effectively. we have to quit letting people gain the system as they do right now with these patterns of violation that go on year after year after year and they never have to do anything because they never get a final adjudication. they never get that final adjudication and that is how the game the system. so while the and in danger can be used it just seems to me that it's not practical to have someone there at exactly the right place at the right time. >> mr. chairman you are right and expect it can't be at the mine every moment negative operating nor can they be in every location in the mind and 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 is an important element. but there are additional authorities. the assistance secretary was entered into a dialogue with several of your earlier adopt the injunctive relief authority. they don't have to wait for the pattern. but not -- the agency today does not have to wait for the adjudicatory process. my point is pattern is an important tool and i am not trying to minimize the significance of that tool. but what i am trying to press upon you as there are other tools that exist today while we continue to work through this backlog that troubles all of us. >> changing the culture, is that what you said? i don't think mr. harris's culture needs to be changed although the workers that work with him, i don't just mean mr. roberts and the other miners

families out here. i've been around call 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 for senators, i don't think my dad never wanted me to be one of these. [laughter] but nonetheless. and they care deeply about their fellow workers and their health and their welfare. so it seems that the culture that we are talking about changing happens to be at the employer level; is that what you're talki about >> the culture needs to be changed across the entirety of the industry, and there are many factors that come into play when you are talking about culture. it has to stop from the top down, clearly, and that is recognized 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 are trying to do across the industry voluntarily to take, and it was discussed earlier take the best of the best. there are companies out there that perform year in and year out without lost time accidents. we are trying to determine and share what they do and why they are able to accomplish that and make sure that the entirety of the industry has the benefit of that. >> mr. roberts, your observation on changing the culture and of the disalle there are some miners, some mining organizations that as you have pointed out of great good lines. >> we don't need to change the culture of the entire industry because most ceos that i know, most presidents of the companies that on no would never have tolerated what has been going on at the upper big branch line and some of these others. they would have fired people. they would have sent people themselves. i give you -- caused her name

because she didn't ask her into the cold play of ceos that call me that has their name on one of the minds as a potential pattern here. cecil, i don't know what's going on there. they call me. i say i'm going to find out. he thought i had leadership there i could depend on the that is the case they would be gone. and i'm telling you, i'm going to fix this. , that is the ceo of the company telling me they are going to fix this pattern of the violation. we are on the list for a potential. 95% of this industry -- and this is a statement from me on the other end here -- 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. they don't care who use and 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 is called creating a culture of compliance, and that is what we are trying -- trying to do. mr. addington, i'm sure that you are aware that msha has for a long time had an anonymous reporting system for reporting hazards where anybody can use an 800 number or finally report online, and as the web page says in bold letters, they all need to identify themselves. in your experience with miners are they aware of this anonymous reporting system? edni of the employees to work with try to use the system and what was the result? >> yes and no. enough miners are not aware. probably there are statutory safety rights under the act including the 800 number. the problem -- it is a nice function the can anonymously make a complete to get the problem in reality is depending on what the complaining about it

is not very hard to figure out of the mining site who made the complaint. if they are complaining about the bill let might be the building examiner they look for first and, you know, and number of the clients that we represent any more when they make complaints to make sure their name is on it because they have more protection under the law and they feel that way. so you know in theory it is a good function and in certain cases it is essential because miners can be protected using the 800 number but in other instances just as well is better off making the complaint out in the open. >> thank you. that is helpful mr. watzman, since 2006 glesby's budgets increased faster than the miners act, increased by 36% and msha has higher over 100 new coal inspectors. that is due to the increased resources msha was able to

complete 100% of the such tour the required inspections in 2008 and 2009 for the first time. why do you think msha was not able to properly follow on the clearly concerning record of the upper break to the cadet branch line? does msha need more flexibility to focus on bad actors? >> senator, i can't speculate to a thought process on the agency and the actions they chose to take or did not choose to take. what we know is there are mines in the country given the size and the requirement that msha must inspect every underground mine in its entirety four times a year and there is a misperception that four times a year means an inspector is four days a year. there are mines in the country that the quarterly inspection begins the first day of the quarter and the closeout is the last day of the quarter and they roll into the next inspection so there are mines in the country where there is an inspector in the line every the line is

operating. i won't tell you that is the pool because it is not that there are many mines where that occurs. so it is, you know, rather i would like to leave you with that thought rather than try to speculate on why msha did or did not take follow-up actions based upon the information they had available to them. >> and i noted that the upper big branch line had inspectors on 180 days in the last year. it wasn't every day but that was pretty significant. so, when a msha inspector identifies and issues a citation, is there any way for the operator to avoid the hazard? >> under the law of the operator has to abate the hazard and the citation is an abatement time. often times it is by the end of the shift. maybe by the end of that day depending upon the conditions they found. it may be an extended abatement period, and the inspector may extend the abatement program beyond that originally set if it

requires a technological and out 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. >> as contesting get get them out from having to the date it? >> no. >> thank you. i'm over my time. >> senator rockefeller. -- before, mr. chairman. i'm really glad, mr. addington, that you said what you did about if somebody calls the 1-800-number which is not the culture of southern west virginia or most of west virginia. we don't spend a lot of time calling 1-800-number's because the assumption is that thing is going to happen but the most important and use it is the countries where the phone call came from. the intelligence committee, you don't have to be an nsa or the cia to know that is a very easy thing to do.

so, making the phone call is in fact not reporting the danger. it's putting your own job in danger. that is what it comes down to for me to ring and i would like to say to mr. watzman coming to where the head of a very large corporation. i think our president roberts said about 86% of the coal operators that operate in the mines -- look-see 6% -- to a good job. i've had the same phone calls that you have to read people who are on that list but don't want to be on the lesser shocked and they want to do something about it. on the other hand there are some that don't that proud -- proudly flaunt that they built and perhaps two hours of every day of every year to find out of how the safety a stream that how the

production is coming along. i am talking fairly specific here. why is it that you haven't stood up in this association? i have so many operators coming to me disavowing any relationship with this particular company which is in fact involved in all of the recent, aracoma, sago, all of them. why is it that part of your responsibility is and to come from those people, you're association's responsibility is to confront those people singing you are giving 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 a ceo, president and ceo can overwhelm the presence of a board because they are well paid and they don't

have the same responsibility. maybe we ought to have something where the board members have to go down a mine two or three times a year. maybe we ought to have something like this the director of that mine has to appear in the sec report that the submit. the safety record in the mind. >> that would have to apply to all industries. no industry is like the coal industry in terms of danger and in terms of remoteness and intimidation. and it to you, mr. harris, no i won't make this to you because you've already done so eloquent. to you, mr. roberts, intimidation to me is the bottom of so much of this, and it's not totally proven but it is an utter fact. i have heard so much of a in these last 40 years working with this problem there for you have

to get at intimidation. you can't get intimidation through the rules and regulation through the wall that we passed. that is the culture of the minds i think that you and i are talking about. how do you respond to that? >> there's a couple things i would suggest we might want to think about. first of all, the law says any miner who feels he or she is in danger has a right legally to withdraw from that particular area. that does not have been in the minds because of fear of being fired and so you lose the job you have and get another job at massey if you exercise the right. the second thing is if you call this 1-800 number and they find out as mr. addington said so eloquently they are afraid they will get fired for that. so i think if i were to encourage you to think about something right now i would for the criminal penalties on any

mine operator who disciplines someone and i don't mean somebody just didn't want to work, if some one legitimately thought they were in danger no one should be forced to work in that condition. no one should be fired for calling someone and say i think this line is going to explode. there are stories here now and people have come to us and i sure that they have come to that said there were grown men crying afraid this man was when to explode in the mining industry for years. we should be embarrassed, in particular for what i do and all others to say in america that shouldn't happen. we should put some one in jail but there it is a section or mine for more or owner of a company who allows something like that to happen we need to get some help power to the workers to say if i call speed i'm not wait to get fired because the boss is going to

jail if he fires me and my only that but the ceo is going to be 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 one something senator rockefeller said, mr. watzman. he said mine operators and safety must be the highest priority. and you said they must go beyond the mere conformity with the law. it sounds like from everything we have heard that massey had a reputation of not doing that to say the least. why does the national mining association tolerate that?

>> senter i don't think it is an issue of tolerating. i am not sure that there is much value and ostracizing an individual or an organization. what we would rather do and what we are trying to do as i said earlier is raise the performance of the entire industry through the sharing of best practices through the voluntary awareness programs that we've initiated through the new web site that we've created called safetyshare.org to make sure we can disseminate across the industry the best practices, the best of the best so we can bring that level of performance of and i am not sure that ostracizing that individual or an organization moves us in that direction. >> if that organization willfully defiance they are not going to respond to the new waste web video on safety,

massey obviously. i think that is silly frankly. mr. addington? i kind of said this is shocking this testimony to me that the mines continue to stay open and i say why can't you shut down the mine or part of a mine and they said well because of the federal mine safety and health review commission has made some rulings that made it harder to shut down. is that true in your experience? >> it is partly true in some respects has to the pattern of the violations i don't believe that is true. if you will look at section 104 and violations the statute as it was intended and if you look at the legislative history it was intended to be a hammer and

unfortunately they are implementing regulations in 1990 it was weakened and the internal criteria they are using now week ended even more. we've heard a couple of times during the hearing about potential pattern of violations. you will find that in the statute. it says nothing about potential pattern of the violations. if it is engaged in a pattern of violation getting notice. right now what's been happening is they get a warning they might eventually get a notice and then the criteria for getting off of that warning is relatively easy compared to what it takes to get on the warning. so we are in the current state your talking about years before you can get a pattern of violation of notice. >> i think we have to examine what we can do legally to make sure that the mines are clearly not save or shut down. thank you. >> thank you, mr. chairman.

>> i might respond if i might on that is that let's say a miner sees potential safety violations that if it reports would shut the down. they don't get paid. right away you've got the conflict. shall i report? you should it down and me and my workers are out of work and out of pay. so i can understand the conflict that would accrue that a miner might feel in that kind of situation. senator casey. >> mr. chairman, thank you. ranking member enzi for calling this hearing we are grateful to have senator rockefeller. first i want to express personal condolences for all of those who lost someone in this tragedy. no words of condolence or sorrow can match their grief that so many people feel.

but it's important we have hearings like this and others to change the policy and to try to do our best to be responsive to this tragedy. i growth in a region of pennsylvania which for decades more than one generation was the capitol site call of the world and i have a very limited sense based upon some readings and family history and things like that fleeting glimpse of what it's like to work in a mine and have a family member to this. a lot of us come to these issues with a degree of humility that we should acknowledge. there is an essay written by stephen just before the turn of the last century about a mine near my home town of scranton.

a beautiful essay about all of the ways you could die in that negative, all of the darkness and danger is only a great writer like he could express and he talked about at one point in the essay he talks about 100 perils winning the 100 different ways you could die in the mine. but even with all of the modern technology and advancement side of think any of us could even imagine this kind of tragedy happening today. so we have to if it means changing policy we have to do that and if it means 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 a kind of fundamental basic question and that is on the minds of all the fuss and they have been answered 15 times already but repetition around here is a good thing and

that is the basic fundamental question i have is based upon the experience of the table from the witness is and we are grateful for your presence and your testimony what does the united states senate and i will leave the house committee of their own work to do but what should the united states senate do and the have fenestration do in the next six months to make sure this kind of tragedy doesn't happen or that we substantially reduce the likelihood that something like this would happen again and i start with mr. roberts. i've known him over the years and i'm grateful for your leadership on these issues on behalf of the working men and women. >> thank you. there are a number of things i would suggest in my testimony. one is dealing with the backlog styx's that the review commission.

there is not only a disincentive that doesn't exist, there is an incentive to do with every one of these funds because if you look at the record you get authority some% reduction on the appeal so if you get cited for a million dollars and want an appeal before as oliver you end up paying half of that were less. by way of an example that hasn't come out here by the way over a million dollars in fines at the upper the branch the paid 100 some thousand dollars so the rest of the venegas is still sitting somewhere in infield process. we argue there is no reason why the fines shouldn't be paid immediately and held in escrow if they want to appeal that way they do not get the benefit of that money in their pockets and encourage them to do this. i would point the panel back to 1977 and what this congress

wrote that the fines should be paid in close proximity that time they were issued because that congress understood the failure to do that would lead to something similar to what we have currently. we would argue to pay those funds quickly. the second thing we would argue it think this whole pattern of the violation has been kicked around here pretty good. it is an absolute failure the way that it works right now. what should happen as while if you are appealing the cases, the defiance and if indeed you have been issued these penalties i think it is time for msha to take a close look at you even though you are appealing this because it may be too late as was the case at upper big branch while all of this is an appeal we are trying to get to some magical point in our lives here to say yes that mine should be shut down. i think if indeed there has been this many penalties issued then i think we take the steps to say all right, the district manager

needs to send more inspectors, more frequently and to the line because there is something wrong here. just because you haven't gotten to the final day where some appeal process says you have to pay these finds it is too late for the miners. they came to the system here and i've mentioned that in my testimony and you know there will be someone that argues we don't really need the law or whatever and i would point out and i said this in the beginning had all been obeid we wouldn't have had this explosion and 29 miners losing their life. however, i would point out a good laws work. we just recently celebrated the 40th anniversary of the 1969 coal mine health and safety act. it became effective in january of 1970. just something for you to think about. 40 years prior to the fact 32,000 miners lost their lives.

over 32,000. 40 years after, 3200. so those who say that the laws don't work that isn't true. those who say let's do away with the laws and the about the business of doing whatever we want, that is what we did 40 years before we passed the 69 act and it didn't work. i have a lot of ideas about this and i live like to get to the other panel members. >> senator rockefeller wanted to make one more comment and i just have a question for mr. -- speaks before, mr. chairman. we've been talking about the culture and i think it's important to point out i would say 90% of west virginians, of pennsylvanians, of ohioans, wyoming-ites -- what people love

to understand this isn't just a public place we are talking about, this is 35 minutes, 45 minutes of a beautiful love lease stream and things and then all of a sudden you come to this enormous montana. it is a private life. decisions are made by very few, and the effects are very many. the miners are put in an impossible cultural position. because if they get offered payment of 65 for $70,000, what are they going to do? are they going to say no? not interested? that's not the works. and the families said the obligation to the family. they've got to survive and take care of their families as well as keep the lights on in america.

so, it isn't really a choice for them in this culture. to me the culture has to stop from the top and i am going to give you an example and i will be short, mr. chairman, as i always am. [laughter] i was governor of eight years in west virginia and we were having unacceptably high death rates in the minds. i decided that as the chief executive, that is the ceo, that i would go to each of the minds with mine inspectors and and would gather after had been a death. that had never happened again. they're also was sitting as they were explaining to each other what happened or who should have done what. things happened. everything was different because the culture change took place at the top. i'm not saying that i changed the world but it did have an affect and that is why in a secret world at the end of 35 miles apart driving and then

1,000 to 2,000 feet underground, with only a few people from that state or from any state had ever been it has to come from the top. it has to come from the top. >> mr. chairman, related to that, i have been down in an underground mine but i know most people have not. >> because we are centers. specter is a fellow from wv i don't know if he's still there but his verso mur hickman who has written some great books that give an understanding of right after 2001 he wrote a book called "we are not afraid," which talks about the culture of the miners as well as perhaps the way that americans ought to view the terrorism attacks that we have had but he also has a book called "the ret helmand," it even gets into some accidents. i would recommend those to people that haven't been in the mine. thank you. sprick listening to everybody i've been respectful, not trying

to interfere in all the questions and using the comments and i keep on thinking what does harris have to say about this? the guy that toledo's in the minds and works in those mines, do you have any last things you want to say here? >> yes, i really believe those people that died didn't have to die. it didn't have to happen. it could have been avoided. that's what i like about being in a union mine. if you have representation all time. you don't have to be scared to call that 1-800-number. you don't have to have that fear. and the coal operators, they want to get the work done safely. they want you to go home safely. they want you to return to your family. you don't have that in the nonunion mines. i have had inspectors who have told me the have asked for

representation, some of the men that walk with them say no because we will get fired if we do. you shouldn't have to live like that and to be on this side of it is worth it because you have a voice and if they're going to shut the mines down they are going to shut the minds down. it doesn't matter what you say or do. if you're going to shut the line down you were going to do it any way. you know. during the later but often a way so it doesn't matter you do so much more that he's going to lay you off. he doesn't care about you. all he cares about is the coal and the money. he wants to be the lead coal producer in southern appalachians and as long as he can do that he doesn't care about anybody. that is all i have to say. >> mr. harris, i think it is a great final word. >> thank you for the panel and now we will bring the next panel lot. >> panel number three.

[inaudible conversations] david michaels, dr. michaels is assistant secretary of labor for occupational safety and health, nationally recognized leader in the scientific community efforts to protect the integrity of the science that forms the basis of the public health environmental and regulatory policies. before coming to osha he was professor of environmental and occupational health assistant at george washington university school public health and health services. in 1998 to 2001 dr. michael served as assistant secretary of energy for environmental safety and health. mr. michaels, just along here second until we can get some calmness restored here. [inaudible conversations] we are now shifting over to osha. i might say parenthetically that

this panel and the next panel now are going to be shifting from msha to osha and focusing on the occupational safety and health program. [inaudible conversations] >> could we please take the conversations out in the hall. if you need to appreciate that. we really do have to move along here. okay. mr. michaels, welcome to the committee. your statement will be made a

part of the eckert events in tire if you could sum it up in five minutes we would appreciate that. mr. michaels, welcome. >> thank you, german harkin, ranking member in the and members of the committee. today we are meeting under the shallow to the recent tragedy that captured the hearts and mind of the american people. the almost untouchable death of 29 miners in west virginia, the loss of refinery workers in washington state and the 11 workers still missing from the deep water horizon. what we are also hearing in the knowledge as 14 americans field to come home from work to their families every single day of the year. we must think seriously to ensure that osha has the tools it needs to enforce the safe working conditions. if we are to fulfil secretary of labor balsillie's vision of good jobs for every one we must that detective laws that will insure all americans to the right thing to get good jobs or save jobs but an american worker still face is unacceptable hazards. yesterday the labor department released its spring regulatory

agenda which includes a new enforcement strategy plan to prevent and protect. this approach would require each impleader to do what many employees do now to implement their only injury and illness prevention program tailored to the actual hazards of the employer's workplace. we're asking them to find and fix their hazards. last week we announced a new initiative to implement long overdue administrative changes to the penalty formulas which would have the effect of raising the osha penalties while maintaining the policy of resisting penalties for small employers and those acting in good faith. and we will implement the severe violator enforcement program increasing doubt focus on repeatedly recalcitrant employers. while important these administrative measures are severely limited by the constraints of the current osha law. the administration supports the protecting america's workers at, pawa, which is meaningful and substantial changes to the osha structure and enforcement program. the most serious obstacle to

effective enforcement is the low level of civil pelmets allowed under the law as long as the weak criminal sanctions currently, the penalty for the serious violation, those that pose substantial probability of death or serious physical harm is only $7,000. osha penalties have not been raised since 1990. pawa indexes to the consumer price index to ensure that a penalty structure is not degraded over time. it is a sad truth for some irresponsible employers nothing focuses attention like the possibility of going to prison. currently successful criminal prosecution under the osha naftali results and a misdemeanor under pawa. another obstacle to protecting workers is that now if the employee contests violation osha cannot force the employer to fix the house until after the contest is decided. the loophole has fatal consequences. osha has identified at least 30 cases the last ten years in

which workers have been killed during the period after the citation was filed. pawa would require employees to abate hazards after the citation is issued. we know that osha works better if they're actively involved in the sell health and safety but they would be against participating in fixing the health activities and not likely to do so. osha's provisions are 40-years-old and lack far behind similar provisions in the law and provide stronger worker protections you have been enacted with strong bipartisan support. pawa provides workers with a private read adoption. it is critically important that the employee fills to comply with the relief both dol can identify the action to but they refuse unsafe work and private employer retaliation against employees reporting injuries or illnesses. osha recognizes the importance of family persecution. while it is the osha policy to

talk to the families during the investigation process and to inform them about the citation procedures and so much, the policy has always been implemented consistently and in a timely manner. pawa please enter all law the right of a victim member to meet with pawa and receive the citation of the same time the employer at no cost. speeder cuba also enable the victims to be informed of any notice of contest and to make a statement before the agreement is made to restore or multiply the citation. finally, it is a little-known fact that the local employees to respond to the emergency repair the highways wastewater pick up the garbage, take care of the mentally ill and provide social services and staff the presence the are not covered by osha ellis the state which they work chooses to do so in only 25 states have elected to do so. public-sector workers perform work that is as dangerous as those in the private sector and according to the bureau of labor statistics the high your injury rate than the private sector

workers. public employees deserve to be safe on the job. treen public employees as second-class citizens must come to an end. mr. chairman, as we prepare to observe the worker's memorial day tomorrow we realize that our work is far from don. to quote from president obama statement in the wake of the upper bay branch mine disaster, we owe it to all of the workers' action committee with an accountability and assurance that when they go to work every day they are not alone. they ought to know behind them is a government that is looking out for their safety. i join with you come mr. chairman did a kidding ourselves to bring it up the day there will be no more workers memorialist for body on the job. thank you for the opportunity to testify. >> michael, thank you for your testimony. i've read the written testimony last night and i thought maybe we were talking to the eckert talking about these exhibits here and the one i mentioned in my opening statement defines penalties both civil and criminal or tougher on

environmental lobbies than they are on the workers' safety. in the testimony you plan of the 2001 social security to the to -- acid that exploded in the refinery in delaware. geoff davis, a worker, his body was literally dissolved in the acid. the osha penalty was $175,000. yet in the same incident thousands of dead fish and crabs were discovered along an epa clean water act violation amounting to $10 million. how can we tell geoff davis's wife and their children the penalty for killing fish and crabs is many times higher than the penalty for killing a husband and father? >> and these things cry out to do something and we have got to make the necessary changes. and that is what we look to you for is your suggestions and advice on how we change these.

right now we just heard from msha. i think you were hearing all of that. they have the authority to order the withdrawal of miners from an area until they have abatement. they can shut down a mine but we know that doesn't happen that often. yet osha cannot immediately shut down the process of removing workers from harm until the hazard is correct. is this correct? >> yes, sir if a osha inspector is in the facility and we see a hazard dangers to facilities we can certainly ask an employer to shut down but we can't required. we have to go to court to do that. sprick even though there may be imminent danger? >> yes, sir. >> do you have any device for any suggestions for the legislative change? >> i certainly would like to see that changed. i think that is an extremely important change. msha has the