authorize the secretary of the senate to return the papers on h.r. 5 to the house of representatives. the presiding officer: without objection. so ordered. ms. landrieu: i ask unanimous consent that when the senate completes its business today, the senate adjourn until wednesday, march 28, at 10:00 em, that following the prayer and pledge, the journal of proceedings be approved to date, the morning hour be deemed expired, and tiement for the two leaders to be reserved for their use later in the day, that following any leader remarks, the senate resume consideration of the motion to proceed to s.2230, the paying a fair share act, with the first hour equally divided and controlled between the two leaders or their designees, with republicans controlling the first 30 minutes and the majority controlling the second 30 minutes. and that at 5:00 p.m., the senate proceed to executive session under the previous order. further that the filing deadline for the first-degree amendments to s. 2204, the repeal big oil tax subsidies act, be 11:00 a.m.

on wednesday. the presiding officer: without objection. ms. landrieu: there will twok votes around 6:00 p.m. tomorrow on judicial nominations. additionally, cloture was filed today on the repeal big oil subsidy tax act. if no agreement is reached, that vet will occur on thursday. if there is to further business to km before the senate, i ask had a it adjourn under the previous order. the presiding officer: the senate stands adjourned until 10:00 a.m. tomorrow.

calls going up and down the mississippi delta was saying they were now revoked and the next morning between 602,000

white men poured into phillips county to begin shooting down. >> they know it's going to happen but we don't always win to happen. we don't realize what's going to happen, but they seem to. of course the crowd is with us now. the momentum is behind us and they are pushing us. today's house hearing on mine safety was in part a reaction to the upper big ranch accident from two years ago. an explosion at the west virginia coal mine killed 29

workers. at this hearing labor department assistant secretary testified in touch favor of tougher sanctions against companies that engage in risky behavior. the education work force committee is chaired by the minnesota republican john kline. this is three hours. >> the quorum being present the committee will come to order. good morning. assistant secretary, thank you for being with us today. on april 5th, 2010, the people of mont call wv suffered a tragic loss of around 3:00 in the afternoon workers completing their shift to the upper big branch line felt a strong blast of wind hit their backs. it was a chilling warning that a violent explosion was tearing through the mine, one the what killed 29 miners and severely injured two more. as a nation, we continue to mourn the men and women who died and keep their families and our

prayers. since that fateful day, the people of west virginia have been searching for answers. how could such a catastrophic event take place. could it have been prevented? what steps need to be taken to help ensure this kind of tragedy never happens again? as part of a federal response to the explosion, three teams were assembled to examine the events of the upper big branch and the investigation team to determine the cause of the explosion and internal review to examine the actions and a team from the national institute of occupational safety and health conducted an independent assessment of msha's internal review. after examining more than a thousand pieces of evidence, msha released its report last december. the report documents three evens the facilitate the worst mining disasters in 40 years. first, one natural bid and faulty control on the machine created a spark in the ignition. than a buildup of methane gas

combined with the trigger explosions. finally a massive accumulation of coal dust fueled the fire that quickly spread throughout the line. while this explains the fiscal cause of the disaster, it's real genesis lies in the corporate culture that values profit over safety by engaging in a reckless disregard of the safety protections energy bears the responsibility for the death of these miners. the investigation revealed numerous safety violations, including keeping two sets of books and routinely providing advanced notice to the miners that inspectors were on site. all part of a campaign to conceal the working conditions under ground. disabling of the detectors that could have alerted them to the accumulation of methane gas and failing to comply with the standards that would contain the fire before it consumed the mine. the list of the violations go on

and on. safety was clearly not a pretty. and 29 miners and their families paid the price. prosecutors are to be commended for the efforts to bring justice to those who engage in criminal activity. the mine operators have a responsibility to protect the workers. cecil roberts, president of the workers' association who we will hear from shortly once noted that 95% of the operators are trying to do the right thing, get a bad actors continue to jeopardize the safety. that is why we have the mine act and the safety and health administration. when workers are needlessly put in harm's way federal law enforcement post require corrective action and hold the operator accountable. as we've learned in startling detail from the internal review and independent assessment regrettably, this didn't happen at the upper big branch. instead they were forced to confront a combination of reckless safety practices and

enforcement failures. on numerous occasions inspectors identify safety violations, it does require the house arrest. even more shocking it simply went unnoticed altogether. for example, in december of 2009, msha approved a plan to secure the roof of the mind. however, for subsequent inspections failed to cite them for violating the approved plan. this proved to be a critical enforcement iraq once the bridge collapsed altered the flow and allowed the buildup of methane gas. furthermore it is difficult, almost impossible to imagine enforcement personnel missing the inherent dangers of coal dust accumulating throughout the mind. again, this enforcement neglected a crucial safety concern that would later enhance the magnitude of this disaster. we've also learned of the last two years that other enforcement tools were either poorly used were never implemented. bipartisan reforms enacted in 2006 created a category of flagrant violations yet they

were never imposed. computer glitches allowed them to tougher enforcement measures and support of its including one that outlined concerns with methane in the mind or never transmitted to the operator. the list of enforcement could go on as well the quote what have lessened the big chances of and possibly could have prevented the explosion. there may be a number of reasons for these children know excuse can come to those lost loved ones. some dealers have plagued the agency for years and that mistakes are also followed with a pledge to do better. yet other big branch still happened. tragedy strikes, promises are made, new laws are passed and broke an enforcement regime goes on to read administrator main, i hope to convince this committee and of the nation's miners that this time will be different.

this time we will learn from past mistakes and keep the promise to do ever. i look forward to discussing these with our witnesses and i now recognize my distinguished colleague ms. woolsey for her opening remarks tariffs mix before. as we examine the lessons for the upper branch disaster, we can never lose sight that there are 29 families that lost their fathers, their brothers, their husbands and their best friends. almost two years ago the committee travelled to west virginia where we heard chilling testimony from the families and the miners about the unbelievable conditions, most of which you listed in your opening testimony, mr. chairman, so i won't repeat it, but a lifelong monarch and grandfather one of the 29 miners who lost his life testified that day he said i'm

asking for you all to please do something for the rest of the coal miners better in the mines. i prefer it every night, every day. if you want to something, something like this is going to happen again. we hear your plea. there is an investigative reports on the tragedy, all found that massey energy caused the explosion by failing to comply with the long established safety standards in mining work places. they failed to prevent a tragedy because it didn't maintain the water spray ignition or shore up the work to keep the mine ventilated and it failed to keep it to prevent the coal dust explosion. on top of the failure to follow basic safety protections, it engaged in a pattern of obstruction. massey routinely provided advanced notice to inspect which

gave time to correct the first of the productions before the hour life underground. massey kept two sets of examination books and engaged in the pattern of intimidation miners' jobs they try to stop production to correct unsafe conditions. the governor's panel concluded that these failures were the result of a culture, and he said, it became acceptable where deviation became the norm. the mine operators responsible for the health and safety of the miners and if the operator fails it is up to the safety agency to then offer rate back into line. but the effort was compromised. there was a failure to put this on a pattern of violations or to

apply maximum penalties. there's a failure to investigate massey managers who may have engaged in willful violation he and without resolving the previous safety concerns. today mr. chairman, we must examine why this happened. we have to know what broke. we know the budget cuts and retirement and incapacitated ineffectiveness particularly in the early 2000's. then after the tragedies in her 2006, congress finally reversed and provide resources to put more into it gives back into the mind. but the new inspectors didn't have the needed experience, and there were not enough technical specialists. violations went undetected including critical violations highlighted in the latest report. only a few weeks before the

explosion msha inspectors were underground near the source of the explosion but the lead inspector have only 13 months of experience and missed a number of violations that may have prevented this accident in first place. while they fell short, it wasn't for lack of trying. the $3.1 million in penalties prayer to the occident the agency shut down parts of the mine, 52 times in the previous year. but the citations didn't change massey's conduct. in fact rather than fixing problems, montcoal's penalties for met with litigation, knott compliance. massey contested 92% of all penalties prior to the explosion. what is clear is that msha was no match for massey or any other

operation where the corporate greed comes before the health and safety of the workers. today we recognized the entire system field of the miners at other big branch. passed congress shouldn't have slashed funding for the mine inspectors. msha needed to do a better job with the tools it had come and speak of the exploded msha's weaknesses and those in the law and hurt the workers. it should have been much stronger because that is what it takes when an operator has little or no regard for the workers. we are prepared to work with our colleagues to enact meaningful reform so that we can honor of a plea in the lives of the country's miners. the blood spilled by these miners must not be forgotten and we must protect all miners from the errors that led to the

disaster. mr. chairman, in closing, i want to welcome our witnesses will be here today as well as the representative rahall and capito who have a lot invested in arguing this right. i yield back. estimate all committee members will be committed to statements tauscher tuthill incipit pipe included in the record and will remain open for 14 days to allow steegmans for the record and other extraneous material referenced during the hearing submitted in the official record. let me add my welcome today to our colleagues in west virginia, mrs. capito and mr. rahall without objection we will be permitted to participate in the hearing today. and i hear no objection. we have two distinguished panels of witnesses today and i would like to begin by introducing the

first panel, the panel one, assistant secretary of labor for mine safety and administration. mr. main as a nickel miner and advocate for over 40 years. he worked for the united workers of america and various positions from 1974 to 2002 including 22 years as the administrator of umw a occupational health and safety department. prior to the nomination worked as a consultant welcome back. before i recognize you to your testimony, let me remind you the cleaned but nevertheless important lighting system. we want to hear what you have to say and all of your testimony will be included in the record in your free to summarize as you wish to read when we get into the questions i will be asking my colleagues to stick to the five minute rule so we can have a chance to engage in the discussions and have time for the second panel, and with that,

you are recognized. >> thank you, chairman and ranking members. i appreciate the opportunity to report on april 5th, 2000 disaster. the cause lost 29 miners actions since then the findings of the internal review into the activities before the explosion and efforts to use all the tools needed to fully protect the miners in my confirmation was the deadliest call mine disaster in 40 years has caused unimaginable grief for the families and it extends well beyond that. but they all want assurance that an explosion like this never happens again and we are doing all that we can to keep the miners safe. our inquiries have been the most

transparent ever conducted and for what we've held numerous meetings as well as congressional and public briefings. december 6, 20 love in the investigation team issued its final report and found the explosion was like we started with a methane a commission that when fueled by excessive amounts of coal dust transition to a massive explosion. these led to the explosions were the result of a series of violations of basic safety which were disregarded the upper big branch. but it's the unlawful practice implemented by massey leverett the root of the tragedy such as advanced inspections, intimidations of miners and concealing entries from regulators. while most management exercise the rights during investigations one official recently delegated our investigations findings. the superintendent at the time of the explosion recently testified with standard practice to warn employees underground of inspections and to fix or

conceal hazards for the inspectors to observe them. he also stated when he was a section boss he would spread extra dusty and make everything look good and an inspector is on the way. the violations have $10.8 million of penalties and natural resources which required massey after the explosion to not contest the violations and paid the penalty is in full. the review released a report march 6th which found the reports aggressive and for as much efforts which were among the toughest in the nation there were a number of deficiencies including interest payers to identify the extent of noncompliance with standards. the deficiencies and this adherence to the policies and procedures including deficiencies cited by the previous internal reviews. the internal review concluded that these deficiencies were

primarily the result of budget constraints and the experienced stuff that left the floor and elsewhere short staffed and with serious experience deficits. this is true of the risk of ventilation and other specialists they acknowledge the fact we shouldn't lose sight of the challenges faced in the enforcement were greeted by an operator that intentionally updated the law and interfere with our efforts to enforce it. the review confirmed the accident investigation team findings that massey caused the explosion. we've reviewed the internal review findings and have implemented a number of recommendations including reforms begun before we know that more needs to be done. we are reviewing the conclusions and the additional ideas of the independent panel. the ashura operators have a work place for miners. we believe they are making a

difference. the most effective enforcement tools for the impact of inspections that began after the disaster. since april 22 we've conducted more than 400 inspections arriving at the mines during the off hours to prevent the operators from giving advance notice. we strengthen the pattern of the violations process to make it as effective as we can on the current regulations. for the first time in history we've placed the minds of the pattern of the violations and have seen improvements to the other is subject to the process. despite the efforts to curb the system it's still called the proposed rule we have announced would address them in the current rule that make it less effective and what the congress intended for it to be. the also beef up enforcement of the safety requirements, have to get regulatory action to improve the compliance and require mandatory by the annual training of all of the supervisors and

split the districts to better manage enforcement, reorganize the office of assessments oversight of accountability and the enforcement actions and increased efforts to educate them to protect them from discrimination. the majority of readers try to obey the law. however, the impact will streets there's still some who flaunt the law. as the prior congressional hearings on the tragedy have made clear we need legislative reform without undercutting the critical provisions that have saved many thousands of miners from illness. the problem continues to find the tactics it must use the operators validity administration support from focused and performance of the act. congress should address the certification process and work to strengthen the criminal provisions in the act and we cannot tolerate employers who

can knowingly risk the lives of workers by cutting corners on safety or providing advanced notice of inspections congress should produce a sufficient authority to enact when a miners health requires immediate action. legislation must ensure there fully protected for retaliation as the committee learned during the field here in on the upper big branch disaster unless virginia miners often afraid to speak out because they feared losing their jobs. i look forward to working with the committee to find the way to accomplish the shared goal of providing the nation's miner the safety protections they deserve. thank you mr. chairman. >> thank you, mr. secretary. you mentioned in your testimony and every investigation and every report of the upper big branch disaster has made it perfectly clear that massey was operating outside the law. there was no question.

they are officially one of the bad guys here. but you are representing msha, the agency that is tasked with ensuring the safety in the nation's mines and that included safety at the upper big branch. so i would like to quote again from the independent review where they said it msha engaged in the mine act and the applicable standards and regulations it would have lessened the chances of and possibly could have prevented the upper branch explosion. do you agree with such a statement? >> if you get the investigative findings this are coming and i believe the report pointed this out that massey caused this

disaster. having said that, i can't say with certainty that it could or could not have been preventable. i think when we look at the facts on the table what i firmly believe is i haven't seen the facts that tell me we could have taken the action necessary to stop that. there's a lot of things we could depend differently and we could've done differently but it's my belief if an inspector walked into that mine and found was going on they would have shut it down in a heartbeat. i believe that. >> the question sort of remains msha had a number of opportunities and we've seen that in there a part of your own investigation to see what was going on, even though massey was engaged in the violation of law, but this is pretty clear to me

that if msha engaged in enforcement of the act and the applicable standards and regulations, it would have lessened the chances could have prevented the upper branch explosion. >> i'm saying basically a to plow through everything that's been developed and i think some of the issues have been raised that point to a fix on the question you raise on the last inspection period. the question is did the msha identified the so-called mine that did it take appropriate action? if you look at it from that sense i found no case where they identified the so-called naim and didn't take action. with regard to the inspections that you refer to, actually the inspections that took place only one of them was a regular inspection and the others were in i think one case the

inspection that took place where a team of inspectors went to the mine for the purpose of addressing the problem and issued an order upon our arrival and spend time dealing with a ventilation problem and they had it down for about three days. i think the of your inspection that was involved was where an inspector went up to the tail gate but it was in this entry the was the return of tailgate 22 isolated from the entry as well so there are some series of factors we have to look a little deeper at. but in terms with me swing back to that. i don't know if you have the chance to read the testimony of the superintendent who testified before the proceeding about three weeks ago where he noticed

the superintendent of the mine they used the notice to keep msha from learning with the hazardous violations were and even said as a section boss whenever msha would come in he would scatter rock dust of around to make it look like they had been rocked dusting. in the areas that the inspectors were in prior to the explosion they were on gate 22 which was a development section on the northern side of the mind. this is where the forces were the worst. march 15th come inspectors went into the section committed their inspection, sampled the rock dust and went to the lab. with the lab found and that came out in the explosion with a found is at that time that section was in compliance. all the samples were incompliant. between the 15th of march and

april 5th something happened and the inspectors we knew wasn't back into that area. but if you look at the company's record books during the period there's a lot of dust and combustible material building up. if you look at the entry which was for the long haul the ear of the explosion traveled through the inspectors went into that area on march 15th, conducted the inspection and issued an order on the drive of the belt and the whole long wall built they went and i believe on the 24th of march to make their last inspection which they required the company to clean up. the loss terminated based on the inspection on the 24th i believe march of the last time as it was in that area and if you look at the record books of the of coal dust and spillage that was occurring from the date of the explosion back, you'll find

there's a heavy lifting of conditions. >> my time is expired, and i know i have all of my colleagues are eager to engage in this conversation, so i am sure we will continue to pull this out. it's unfortunate it depends which side of the books you were looking at. mr. miller? islamic my apologies for coming late to the during and i want to thank you for the opening statement. >> thank you very much for your leadership in response to this tragedy and rebuilding the resources at msha so we don't have to go through this again if i want to read from his court

transcript back-and-forth of the u.s. attorney's office and the question is what will you were at the upper big branch was there a practice of providing mornings when the inspectors were coming to the mine? answer colin yes. question can you tell us from the beginning to end how the warnings were communicated? it would start with someone who came through the guard shack and there would be a phone call and over the radio there would be, quote, company on property and would be received at the office called underground and let them know they had company. in this discussion, question, how often did upper big branch line were the warnings given to the inspectors coming on the property? answer, a lot. question, was that most of the time clocks answer, yes. question, was the other big branch line able to avoid citations cut to the practice of advanced warning of inspections?

answer, yes did you know it was illegal to give advice notice of the mining inspection? yes, i knew it was unlawful. question, did your superiors know about the practice of giving advance notice to inspections? answer, yes. did they encourage it? answer, they did. when asked whether he would spread the dust when he was mourned the inspectors were coming, she answered a always spread the rock dust if i knew someone was coming to make it look good. how do you conduct inspections and that kind of atmosphere. >> it's impossible to enforce the law in this activity in a certain place. >> does your report caruthers late what was said most of the time all of the time?

>> i have to give our inspectors credit. despite that plan, the year before this explosion be issued more workers, so i think that showed the fact that we had some pretty aggressive inspectors but there's a lot we didn't know. there's a lot that they did i believe. >> in in this case the discretion is about a calculated interference, this is a matter of the public policy that its inspectors were on the property the efforts were made to move them into other parts of the operation or shut down operations or the clean them up prior year to letting the inspectors come to that part of the mine is that correct? >> i think they have a lot of stuff from the regulators, yes. >> in the report and it's pretty clear that there were procedures

in terms of looking at some of the reports the were filed by inspectors and taking action on those reports. is that correct? >> i'm sorry? kimmage and the criticisms of the agency, the suggestion has been that some reports were made and actions wasn't taken. they were left on the shelf if you will for an extended period of time. >> thanks to what we could have done better at upper big branch. i think it's the same token what you are expressing here and the agency was up against is well articulated by the superintendent was a challenge sometimes on the capability of any inspector come even the experienced inspector to catch up with. this to mcginn your internal review, you say however, page, 07, they didn't collect samples in the long entries and after

the began production they noted the procedures directed them to do so so is the guidance, or is this inspector not doing the job or was it and in proper guidance? >> there's a guidance issue and this is something the report gets into. there was a problem with the agency could of a direct assistant was in place of 2002 and dismantled for whatever reason from that point forward in the program was to develop policies and to implement those and what they found is generated from 2004 and forward and you may or may not have known about those and one of them built of rock testing could different inspectors had inspections on how to do the rock dust sampling in the line. >> thanks. petraeus but one of the

conditions that led to the catastrophic explosion was the accumulation of the coal dust and the investigation report contains pictures that had been rolling through the coal dust and the panel stated the mine operation did not and could not conceal readily observable conditions such as the dust accumulations throughout the mine and else ms. will see said in her opening testimony, how to attribute the existence to the inspector in experience and resource constraints. >> i'm looking at two pages. one is the condition that starkly involved in the explosion of self and to start by that where the fuel was at to cause the explosion which examined pretty hard is their something that we missed in that area that was part of the explosion? in that area i didn't see

evidence from any of the reports i found inspectors have walked by and area and didn't take interest deductions. islamic the did inspect and find in the critical areas. one area that is the most important is the question i asked myself how did we have such an explosion right off the tail gate? and there is no evidence the company had any real methodology in the explosion investigation of the continued rock testing in that area. what we found is the inspection of was made of that area have been over a treaty period, march 9th and 11th and we had the ventilation specialist in that area, we had the supervising training in that area, and an inspector in that area and it dealt with where the issued an order of close down because of the ventilation problem, and this is an area when the inspector shall not to

do this last inspection here comes the gang of the six inspectors to the parking lot of the energy upper big branch line and i think the word the was used was hailstorm when one inspector show that it took an hour and a half for the inspectors to get up to that spot and we know that just before they got to that location at i think it is about 9:48 the company shut down and explained that the problem and this is according to their records it was so convenient for that to happen. they arrived at the area an hour and a half to two hours after the show up on the property and it's their instructions that the use to get was correct and the area that we are talking about where the rock testing would have been visible is not a large area. a question of r. dee has to ask is the inspectors spent three days in the area over this and

was their something done ahead of them? that's what bothered me all the way through this house the inspectors could have missed that by throwing rocks just on that. as a quote stock of the internal review of the repeatedly cite the inspector inexperience and the district as the cause of the inspections. it sounds like you are saying regardless whether we have experience or inexperience, inspectors this probably would have been missed but if the word they're on the day of the explosion they would have caught it. >> some of the conditions for bother some that were identified in terms of the conditions that actually existed and a 64 robert question is, and i think it has to be asked, did the company do something that gave the last inspection was made that masked what they were doing. >> i'm trying to focus on the inspector in experience. do you agree that they were

inexperienced, yes or no? kimmage absolutely. skype when do you think they will be trained, and are they ready now? >> let me talk about that because this isn't something that just happens overnight. if you look at the book, the reports, i think this points it out as well, there was a severe staffing problem that was created starting back around 2001 when there was a flat lie and budgeting which caused the agency to have to aid itself so to speak by cutting back just to be doubled to stay at the funding level and in 2004 there is a budget cut in the program that reduces the staff and at the same time, you saw a major retirement take place and it was pretty overwhelming when you look at the numbers. i think between 2001 to 2006 it was over a thousand people that left that agency and had an average of 2300 folks. i think it was 690 some out of

1100 to let the coal enforcement ranks and you have an agency that was devastated. congress made the decision in 2006 to add funding which wasn't realized until 2007 when he was able to start hiring again. but it takes two years to get the inspectors to the training programs and just about the time that it was hitting, msha was getting its ranks that up to the level that they were able to start managing. the problem is they had a lot of experience. if you look at the same period managers were not right and left. we had a different district managers running from 2003 to 2006 and that is the kind of ventilation records sort of didn't get handled and you had at the time of the explosion management of the field offices there was changing out. there's three different field office managers, two of them acting during the time of the last couple of inspections. so all the stuff at the agency.

stuff was just like out to the court where they were unable to keep up the work. i knew on the first part of the review process team found that there were specialists in the district. they had over 50 planes and they were down to the to ventilation specialists that ran up to six by the end but there's no question there's an experienced problem and there is no question that the experience losses have to deal with the budget constraints and the agency that lifted where it was out. >> the time has more than expected. ms. will see? specs before mr. chairman. mr. secretary, federal district judge noted recently at a court hearing during the sentencing of mur reengineering where they connected to the cannon disaster

and this is going to get me to a question i'm going to ask. he said, and i will quote him, he said i'm outraged because the minuscule amount provided by the criminal statute in the sanctions of finding these criminals from the canyon. so, mr. chairman, i have a copy of that and i would like to ask unanimous consent to insert it into the transcript. >> without objection. so the act classifies a violation of the mandatory safety standards as a misdemeanor, even when they are injured or killed. so, that's true even when making a false statement under the act, and that is a felony. so what it the difference, why would it make a difference if instead of these weak minuscule

criminal statutes, we had a stronger felonies, whatever you call them, if we treated these miners that were hurt and willful violations of mandatory safety standards were treated as a felony under the act instead of a misdemeanor? >> i believe the judge expressed his frustration at his inability to take tougher actions from what i read tougher action was needed because the constraints of the act. i think it's pretty straightforward, and i think the u.s. attorney's office expressed similar concerns of what they believed were the limitations to bring other actions, and i think it is a classic case you have to step back and determine whether

or not there is sufficient polls under the act to deal with circumstances like that and i will just point back to some of the things we are finding to the impact inspections, you know, if anybody thought that the advanced notice was a big piece of history, we are living in a different world. that's something we constantly find. there is a conduct that is ongoing that is enough deterrent under the act to, you know, prevent that from happening. >> thank you for answering my convoluted question in a way we could understand. thank you very much. >> the msha internal review found that in six separate cases, the managers of the upper big branch line should have been investigated for leading the safety law. why weren't these cases investigated, and as msha in conducting those investigations now? >> there's three reasons to

answer the question why didn't they. in the ventilation and the staff, the cuts also affected the the special investigations throughout as part of the special investigations staff that was cut and if you look at the testimony i think there is a chart that shows the whole specialists. so there is a resource problem of the inspectors can do. the other problem that existed which was raised in the internal review is around 2006i believe it was, they were only able to carry out about 83% of its responsibilities. they were shifting people to do the targeted inspections that they couldn't get to and they were pulling off the ventilation specialists and a special investigators and others to go to keep the mandatory inspection program up because they were short staffed and couldn't keep up. >> with that in mind, do you agree with the independent panel

recommendation to conduct the complete inspections each year of the underground mines to prioritize, with that helped? >> all the cases were shifted off of the u.s. attorney's office that was identified, so those were processed. to answer the second question, you know, i went to work before. i don't know if there is anybody else around here but the first time the inspector showed up at the mine and it was a game changer and i can tell you from my own personal experience that the mandatory inspection program has saved more lives out of that act than any other single thing. if you look at the 170 or the 278 miners on the job in 1977 when the act was passed, we are down to and hope to even get to zero what we are down in the high thirties to around 40 and i think that had a lot to do with

protecting the miners. it's like taking -- to strip that away is like taking breaks off a car because we don't have as many car wrecks now. this is a fundamental piece of the 1969 act and i think the most fundamental protection that they have to disconnect the time is expired. >> thank you, mr. chairman and mr. main for being here today. we appreciate you taking the opportunity to answer questions. i have a few questions about the msha's word about the hours that the work and especially on weekends. unfortunately i have this set of questions buy noting for the past five weekends on of the nation's miners has died including last friday night at the mine in my home state of alabama, and now that msha's

redefault the agency conducted spot inspections at the upper big branch at irregular intervals and none of the inspections occur on a saturday and the internal review also found, and i could come inspectors were contractually required to begin the workweek no later than tuesday which, quote, limited the opportunity for inspecting on friday and saturday. so i understand this correctly does this mean that there were no inspections on sunday and is this issue of not having were having in frequent friday and weekend inspections widespread? >> if to answer the question was their anything on sunday you may be correct. i have to go back and check that but i will tell you what we have done. we've made a lot of changes since the tragedy some of them started pretty quick and i directed my staff we will do better targeting of the problem

and approach the problems differently. if you look at the impact inspections we do every month, a lot of those are done off shift when they are least expecting them to show up in that time for capturing them to prevent the operators from changing underground so that is the tactic that we are using more readily now. the agencies have had to shift their personal to address the and you are right capacity five weekends we have wound up and you start wondering are we so much now on the weekends shifting some of the activity to the time they still don't think we are going to show up, i don't know, but in three of those i believe they were for men that the dog lead in these deaths. we put a load out to the industry the past week to get them to focus on that of all the short answer is we've changed the way we do business and we

are focusing more time on the off shifts and we are calling for the data and the information we've to figure out which ones we have to be yet more often and at the top they least expect us to be fair and i believe they we realize there will be even more weakened inspections across the country. >> it's good to hear. i also understand that you were involved in the jim walter's investigation and alabama, and during that investigation, msha discovered that the operator essentially kept the set of books to read specter is a problem that dates back that far, yes. estimate understand the investigation at upper big branch said that massey was keeping the two sets of books that he legally recording hazards in the coal production report. so the question is given your experience the jim walter smadi and in alabama, what are you doing and what will you be doing to ensure the operators are

reporting the hazards in the official examination rather than the two sets of books? >> if i had been assistant secretary in 2001 we would have taken more aggressive action to not be talking about it as much in 2010. having said that, there's a number of things we are doing in asking congress to take a look at. we've pretty much made this clear to the staff about what's going on. there is no problem for an operator to keep a set of books that list the hazards as long as they put them in the record books and it is one thing i want to make clear to read what we are finding it upper big branch is the were listing hazards in the production looks but were not in the routine books. this is conduct you have to get in the books to find and this is conduct we don't have the power to do a subpoena for example to go in and demand the record,

just something to think about, but they are alert to the fact that this is a problem. we have made it alert to the fact we need to be doing a better job of looking at the examination bookstore was a failure that we found that upper big branch they were not as focused on what was in the books the way they should have been. with the additional tension, the notice has been given to the industry we are using all tools we have but we could use more. >> my time is expired. >> i thank the gentlelady. mr. andrews? >> thank you for calling this hearing and the seriousness all of the members are approaching it. i think for 29 of our fellow citizens we have all engaged in an inexcusable failure, and i would start with us. i think we failed to give prosecutors the tools to convict

people of serious offenses and have sufficient punishment when they do. i think it's outrageous that some of these offenses that were involved in the speed of prosecutions were not felonies, and we need to fix that. we have a responsibility for not giving msha of the tools and resources and personnel is needed for time and it's our responsibility to fix that. mr. msha de bet main camano the record is still being developed but it is a fair statement that some of the inspectors from msha failed to catch things that can't be written off for lack of experience or personnel. they just didn't do their jobs very well and there should be some consequences in those cases certainly at the root of the problem it is absolutely deplorable criminally responsible beater by an operator and i know that there is vigorous prosecution going on

as we speak with whatever tools we have given prosecutors. i think our focus should be on finding out what happened in this loss of 29 lives but also what to be presenting something like this from happening again, and one of the things i'm confident in is how you train and supervise and manage the people that work for you and i will leave that for your discretion but i do want to look at whether we have given this agency the resources and the personal we should and it bares mentioning that in 2001 we had spent $122 million to run the agency and by 2006 it was $117 million which in real dollar terms 15 or 20% cut.

not coincidentally i like the chart that was just to be back again during that period of time it looks as if many of your experienced inspectors which is represented by that red line, the declining line that the number of experienced inspectors drop precipitously as i & from about 12 years of experience to about five why were experienced people leaving the agency during that period of time? i know you were not running it but you talk to people. why were they leaving the agency during that time? >> and per go -- >> this would be from 02 to 06. >> i can't speak for the folks why they left, but there was a

large number of employees that were eligible. why they decided to exercise that, that's something i think he would have to ask them. a couple other items that you raise, could we give under? there is no question about that. and we are on a path to just take a step back and fix the problems and we are not taking the same approach that was done in the past reviews because i've said from the outset if we do the same things they do we will compound the problem. >> i'm not saying that more money on a problem like this works, but i do think spending of less may exacerbate the problem. the budget will be under consideration on the house floor this week if you take the projections across the budget a few pro rate them which they may or may not do, if you greater than, dewitt has 5.4% less to

operate this coming year than you have right now. and if you probate fees for 2014, he would have 19% less than to operate now. what impact would that have on your ability to protect? >> i would take a look at the report and see what they found and what the last in a pact was and you could pretty well predict the future. if you expect to have an effective enforcement agency, you have to pay for it. i think it is that simple and that in terms of the lesson that has been learned from the upper big branch is if we can go back and redo history from 2001 to 2006, we would probably all agree to do that, and having said that i think it is a step we don't want to take to go on the same road. >> thank you mr. chairman. >> thank you. >> thank you mr. jarman and mr. main to read to start with, to offer to the families

obviously the 29 plus to the friends, acquaintances and so forth in this tragedy and it seems to me it was a perfect storm, it was an unscrupulous company and msha didn't really inspect those or follow those rules very carefully themselves it is a perfect storm. i.e. agreed msha didn't cause the explosion, it didn't do that.

>> mr. meehan, your agency did receive increased funding for the last six years, did it not ?-kway mac. >> i think you have to put this

thing in context to look at the investigation findings -- fundings. the agency was depleted to its lowest point in 2006. by the time it went through the process to where the agency could start hanging up was in mid- 2007. as the agency started the higher, the amount of time it took for the inspectors to go through the keep in mind, you still have people that were retiring that were coming out of the system as well. the bottom line is as far as that helping us in later years and having more stability and people -- >> let me interrupt you for just a second. as a physician, we have had young doctors that come out that are fully trained. when they are fully trained, they expect to do the same job

as a senior position. i don't think that is an excuse. when you are trying to do the job come you cannot use that as an excuse. you are either qualified to do it or you're not. >> i go for the older doctor myself. but that is okay. >> i might do the same. do you agree or disagree with the statements made by senator byrd about this very tragedy and the actions of your agency. if you disagree, why do you disagree ?-kway mac. >> i think until folks really had an opportunity to see this all the way through -- to see how much the agency was shorted and how long it took for the money they put back in to have a real effect. at the time of the upper big branch tragedy of the lead inspectors that were at upper

big branch mine a i think five out of six of them in the latest crash of 2006 forward. if you look at 2007 and the makeup of district board and agency, 33% of district for were trainees. >> let me ask one more question before my time is expired. with the egregious findings, should you have just shut this mind down ?-kway mac. >> 48 occasions have shut them down. using the full measure of the law they had that says once you correct the problem you can put back to work. this issue has been talked about. we have asked congress to consider that we try to come up with ways to have a holistic way to deal with a mine that is in

immediate danger. >> it did not shut down, and disaster occurred. gentleman's time has expired. >> this may seem repetitive, but i want to be clear. the first question is, mr. secretary if you look at ms a chase congressional justification, it provides that they are vigorously pursuing procedures without fear of discrimination. can you tell me what you are doing in that regard, specifically. >> i am sorry i missed the last part of your question. i apologize. >> ensures that minors are aware of their right without fear of discrimination.

what are you doing in that regard ?-kway mac there are a number of things in that regard. >> we have beat up protection for those who were fired for speaking up about the city rights in the mine act. we have considerably increased the number of cases that we now take for temporary reinstatement. there are a lot of things we are doing with regard to the minor voice issue. we think this is something that

is a part of legislative processes that were discussed last year. we really think that it is something that will provide additional protections from what they have now. >> that is what i am trying to get you to do is to try to make sure that they have additional protections. that could be part of the problem and. >> everyone saw the numbers come out of here. the last complaint we received from that mine was in 2006 -- four years prior to the explosion. that is a sign that we really need to figure out a better way to give minors a voice. >> the other question you touched on previously when you were talking to mr. andrews. do you believe that they should have subpoena powers, and had there been subpoena powers, it could have changed the outcome of the upper big branch tragedy's. >> i don't know if it will

change the history back because i don't know how it would've been utilized. it could have been better utilized. this was something that was sponsored over the last couple of years. i think if you look at the history, we had a number of witnesses that exercise rights during the upper big branch tragedy. if they were to get to that spot where they could be subpoenaed, we had to utilize the west virginia subpoenas to get to that point. we do not have that. >> inc. you, very much mr. chairman. >> in absence of some kind of whistleblower protection, sir, would you describe -- what you have described here this morning is a continued cat and mouse game with people continuing to worn mining companies and they continue to cook the books.

they continue along because it basically they are immunized against the downside of that because congress gives subpoena power and workers don't have worker protection. we are right back where we were before. all of the internal reviews and the rest of that, you are still citing people -- you cited somebody 32 times, you had to grab the phones on warning people that the government is on the property, and the question here -- two sets of books continue to be kept, but we cannot get to them because we do not have a subpoena power. as long as congress is going to insulate the miners who are responsible for this behavior, i don't care how many people we give you -- you are going to be playing in the short end of the field. that is just not acceptable. you cannot sit here and continue

to lament the 29 deaths and the depth that went before them and continuing to come, and then suggest that you do this with a blindfold and one hand behind your back. at the end of the day, that is what you are describing, sir. >> i can tell you this. with regard to the question that was asked with the two sets of books, weekend ask the mine authored to provide the books and they can say no. what we do beyond that is what we are creative enough to do -- they do not have the ability to. >> the gentle lady's time has expired. >> i think you, mr. chairman. mr. secretary, thank you for being here. i do not think there is anyone who would question the desire to make sure that people were safe all the time. unfortunately, though, change usually doesn't take place

unless there is a tragedy or crisis. if i understand correctly, your inspectors have to have knowledge of policy and procedures of 4500 pages of inspections. is that right ?-kway mac. >> that is probably a fair number. how would you change what you have now. listen, i understand about spending more money. but spending more money is not a fix. it is just a waste of money. what would you do currently what we are doing differently, here's the way i have utilize ?-kway mac i think what has happened if you look at the number of past tragedies, we have taken an inspection procedure process that was pretty challenging for an inspector to do. we expect them to do 1000 things, they can do 750. after sago and jim walters and darby and crandall canyon, there is a number of different

policies. i think the investigation came up to 200 since 2004 that was layered on. i said back in july 2010, i am not doing this. i have put together rewriting the entire manual from a zero. we are cleaning up controversy. we are making sure that all these internal reviews and all these accountability audits get placed into a clear and straightforward way so inspector knows exactly what they're supposed to do and we can have greater clarity. i asked our folks, both the root of this, what our problems are here and how we are going to exit. i can tell you that we are rewriting the inspection procedures to clean up -- >> i understand that. i have been through several mines in the area. part of the problem is -- and i

don't know the expense of the people that you have. when people get cited for not having a proper height above the desk or cut having a cover on a trashcan or having covers under truck wheels, you have to wonder if it is tragedy prevention. sometimes we get to the point where we are placing too many things on the same level. optically, if i am understanding right with upper brick branch, i know you don't -- what would your next choice would have been ?-kway =? >> i don't know how you cleared that up. again, it comes down to if people don't have that in their heart to stand up and do it, and the question about what are the whistleblowers protection. certainly after 48 citations, somebody would've been able to go to somebody and say we have a

bad and shut them down. >> if you look at the history of the mine act of two upper big branch mine i can tell you that the choice for this agency would've been certain orders, which would allow them to quickly go in -- one produced about $700,000. if you can give them an estimate ?-kway mac the force of the day. this is the company that did not pay the fine. this is a company that went against lost. >> this is my point if you know this is going on and they habitually do this, you have to be able to go to somebody of the letter and say listen, we have to stop this. this is a bad act and we have to take out.

>> today we went to the number of polls and i'm going to tell you the we are not there yet. there are impact inspections and the potential violations process that makers for both their safety and compliance record -- i put some on a program with potential violation program. those are two tools that i think have been very effective. but i tell you, if you are still looking for that magic bullet, it is not there. what we did at a mine in east kentucky, they had a record similar to upper big branch, it took us three months to get there. i think that we've need to read look at creating a better told that gives us a swift ability to go when -- if we look at ub today, we still have a gap to get us there.

we are using the impacts, the 104 cappy. >> thank you, mr. chairman. >> i have been serving on this committee for 36 years. trying to make safety a more important issue for our miners. when i started on this committee five years ago, carl perkins, who we affectionately called pappy perkins, the chairman of this committee, we had a hearing on mining safety. i was shocked then but i am shocked 36 years later about what's happening. i can recall mine owners testifying how safe and how

safety is such a high priority. you still get that same testimony from many of the owners who come here and many who didn't. one time it went so far that pappy perkins who was such a kind and gentle person said, when i was a child, my daddy put me on the back of a buckboard and took me over to the next mine where my cousin was killed in the mines. that is 36 years later. a killer that should have made

>> 36 years. i still hear the same stories and attitude often of the owners who try to get by as cheap as they can so they can make greater profits. that area should be strengthened to make sure that their banality is brought into range. stronger regulations, more stringent enforcement, greater penalties. where would you emphasize the greatest effort of this congress to make sure that these people care about the safety of their workers.

>> i firmly believe that there are a number of mine operators in this country who do manage their systems and have systems in place to operate according to the act. that does not mean that they are served tussle in that, but many mine operators tried to do it right. and i believe that others do not. i think if you take a look at our inspection list, some mines will show up on potential violations. those minds are operating outside the main strength. i'm going to start on the list. i do believe that there needs to be more respectable laws and a greater fear of the penalties that exist to deter them from continuing to do the conduct of advance notice without enough curtain up to containing methane to control explosions. on the regulatory front, we have a list of recommendations.

we are going to take a hard look at what we need to do better there. administratively, we are doing a lot of things differently here to make sure that we have the best inspection agency that miners can expect in money can buy. there have been a lot of changes that we are working toward to crack. at the end of the day, i think that the legislation that has been sitting here on the hill has different pieces to address issues. this is something that the commerce needs to take a look at. you cannot undercut the staff and this agency to the point you are scrambling with trainees trying to get into minds let alone inspect them. and expect to have a competent inspection program. going forward, that is something we really need to take a good look at. >> i really think that ear of the lot is the beginning of

wisdom. i think we need to put a little ear and the government means business. we put our spirit, our beliefs, and the dignity of every human being into those laws. >> the gentleman's time has expired. mr. walberg. >> thank you, mr. chairman, and thank you mr. manes for being here. i would like to highlight an issue related to minor training cited in an internal review that seems startling to me. in my getting up to speed over the course of this past year, i have had the opportunity to view my operations -- mining operations in north dakota. i have had the opportunity to go 1200 feet below detroit and see minds, which is a total different ballgame. >> i have had the chance to be

with you in your home area and see your home. in a coal mine at 800 or 900 feet and 8 miles back into that long walk, i know that i am not a minor. i know that you are a miners and you understand that. if i look at the record, upper big branch was operated under a petition for modification to permit mining through oil and gas wells. the petition was granted, according to the record on october 16, 1995. the mine was required to submit a training plan 60 days after the petition became final. as i understand it, that plan would have included an initial and refresher minor miner training requirements, so forth

and so on. but the inspection found that the training plan was never submitted and it was never part of the training plan when the explosion occurred. director, how did that happen. >> i think if you look at -- one of the things you'll find in this internal review that you will not find in others is looking back to find everything that went wrong to get it fixed. i don't think there is any internal review that went back a couple years. that is one of the things we asked of folks. in 1995, apparently they did not implement the plan. i think it is pretty much that simple. >> did msha ever demand a plan. >> i do not -- i believe that somehow in 1995, that provision was put in for modification and apparently we could find no follow-up to require.

i don't know if there's a plan put in place or not, but there was none that was incorporated or found. >> moving forward, we don't live in the past. we look at the past but plan for the future. my question comes to you. does msha intend to undertake a conference of review of all mining plans ?-kway =? >> what happened that upper big branch and the fact that this training wasn't done, requirement was not in place and msha did not even ask for it. if that widespread =? >> the problem that i think that we face as an agency was that there is a lot of policies and procedures that were put in place. i would use that along with the plans. a lot of two mutation broke down

during the years in this agency. i think there are different reasons for that. as far as policies, we did centralize the whole posse review process. on the training programs, we would not find them going back these years. what we are trying to do is start from scratch and train everyone. the findings and the reviews and the things that came out of it, we already have looking to the district managers. >> even as we are training for it, are we looking to this problem that there might be some ready to explode? >> as far as a trading plan, we will look at that to see if it is something that we we can look at. one of the things i would like to say -- this is the first committee i testified for when i became assistant secretary.

i will never forget it. this is an often experience. i took my first trip to the hill. when i was here, one of the things i was laying out and the path i was going to take with this agency, this was about two months before upper big branch. it was in february of 2010. some of the things i talked about was the fact of the day i took this job, 55% of the msha inspectors that i had had two years left. 30% of the inspectors that i had had two years or less of inspection experience. one of the things i decided to do quickly was bring in our field office supervisors, set up a training program to train them on how to be a supervisor. a lot of them had left and a lot were new. and to be able to manage the inspection enforcement program. to figure out a way to get

quickly those who managed the enforcement program and get it under control. we had that put in place and we kicked off the first training. the second thing is to take a look at how we are training our folks and how we are identifying auditing. are we doing enough self audit so the agency can define the things you are talking of. >> mr. tierney. >> thank you very much. mr. kelly was discussing with you the fact that there were 48 d. two inspections of upper big branch mine. for 62 weeks in the year, 48 of those ended up shutting down at this mine. there must be something you can

do. you started to lay out the idea that you could go and seek an injunction, which when you did it in the case of the freedom mine are much ado about three months. if this line continues to operate on a consistent pattern, there would be more violations, and unwarrantable safety violation. that does not look like a good remedy that you are a miner, while they have this track record, you can see if they have enough of a finding to have an injunction. once again, we are left here because of some breach in the law, a failure to get from one point to the other. the miners are left in an unsafe condition -- working in an unsafe condition. >> i am here to tell everyone that we are using all the tools we can.

>> you still don't get to the story when an unsafe mine is permanently shut down or something happens to. >> i want an effective tool. you made it very clear that you are piecing together the authorities you have under the law. but in your response, we cannot get to where we need to provide that protection because you do not have subpoena power in this case, and you don't have enough authority to keep a mind racking up 48 citations. >> there is a point of which we lack the ability to go in and shut down a mine because of it's over all conditions. we can identify in the law to selectively, with regard to the specific issue, and take enforcement action.

i think what you are describing does not exist. >> you wish the results of your inspections -- this was in january, in the release you refer to cool creek mining, and the agency seems secured and monitored. the agency issued 32 citations, 12 quarters was shut down the mine. imminent danger ordered when explosive magazines outside the mine. >> that is the conditions they found. >> in that case, when you secure the phones, did you have a finding of a prior notice or not? >> that when i am not sure about. i will have to take a look at

it. >> but we have an inherently dangerous process going on here. somehow we can't get to the remedy because you just keep going through opening up, shutting down, opening up, opening up. you keep finding these hazards. >> i believe it was a mine that we identified in the testimony that we did a number of impacts -- i think about seven. >> very quickly in response to follow-up of the gentleman's question, can it be shut down? >> they can shut this mine down any moment they decided to do it. if they decided not to have provided advance notice of the inspections on the ground to the mining operator or the mining personnel. they need a fair view of the conditions that are there. it is a mine operators responsibility to have in place

programs and procedures to protect the minorminers. some do and some like upper big branch, really the miners pay a hell of a price. >> whatever number of ships that mine operator can get an within the next shut down, said that was a worth about $700,000 a shift to run the long law. >> let me just say this. >> expired. >> thank you. i want to focus on the internal review. it seems like the tone and breadth of that document almost intentionally focused on district four. it was on page 193 that the page speaks to headquartered

efficiencies. do have a comment on that ?-kway >> it has the focus of the investigation basically starting with the mine and working himself back. this is a process that has been in place since about 1992 in terms of the process. >> the following -- and i'm reading a report. with the shooter magnitude of identified shortcomings, he cannot be identified -- limited to a district court. like the other tools that you said you're starting to use, i would advise and ask that you look into restructuring how you're doing his reports. >> we will. that is a valid recommendation, and i think some of the findings from the report really assess an understanding. we need to go back and retool

the way that we do internal reviews. having said that, i think the internal review team was instructed to go overboard and terms of not being restricted to the balance of that. and really figure out what went wrong. >> also on page 66 of the report, the decision to pursue an investigation was driven by resource considerations rather than the merits of the case. were you aware of this ?-kway mac was headquarters aware that was the reason for this ?-kway mac. >> i doubt if they were because basically what happens is the districts -- the district inspectors would be the ones that would normally identify the cases. they would then transfer that information to the special investigation branch. the special investigations branch would assess those and deal what the district in terms of what their recommendations were. the mac so you don't know. >> i don't know how far, but i believe that what was happening

was there were determinations made about what they could or could not handle. keeping in mind, out of all six of those, i think that the internal review was notorious. i'm not sure that the district would have identified all six of those. but in this particular case, i am not sure that they would be -- >> does this hearing focused on short-term experience. there appears to be an 11 year gap between agency requirements of the operator that new -- elements included in the train plan. the agency failed to notice this during an 11 year. so it seems to me that this is more than just near and short-term inexperience. >> i think there r. a lot of things that played into this. just like the 1995 plan. i cannot explain why that was not implemented. some of the things.

>> the headquarters and the district missed some of this for far too long. again, i would appreciate going through -- i used to be a regular. not in the coal industry, but for other industries. these were the warning signs to me -- to go back and review processes. let me give the rest my time to mr. walberg. >> jammin, going along that train here, knowing the fact that we had a bad act operating that mine that covered certain things so that they couldn't see it, the internal review found many instances where msha inspectors observed serious problems, but do not issue a citation. for example, district or personnel never cited massey for installing the required level of

installation. the panel concluded, and i quote, the proper amount of air, there would not have been the accumulation of methane, thereby litigating the explosion. my question is harry going to handle this in the future's. >> with regard to both of bees, i provided insight earlier on the tailgate issue. there is actually only one expection that took place involving the supports. the other inspector was there during a three-day period when they went in and shut down -- i don't know if you caught that story or not, or when the inspectors arrived at the mine site inspectors went underground and issued an order over the ventilation system. that was what they were looking at. they had the mine for three days over a ventilation issue. those were not all -- and i think there are some differences

about what may have been in the report and what was in the other report. >> the gentleman's time has expired. >> thank you, mr. chairman i appreciate your courtesy and that of the ranking member and allowing me to be part of this today. in my congressional district and home county, it does after that occurred on april but, 2010, it is very close to home on multiple fronts. beyond knowing the certainty, as we now do what caused that tragedy, i do ask for two things of this committee. first, that the committee act responsibly at what the congress should do to prevent another tragedy and just do it. if that means legislation, it i believe it does, i could not excuse and just failures that the congress should not withhold life-saving legal authorities from the agency is some kind of penalty, ultimately only people

penalized would be our miners. i ask that whatever action it is taken ensures that company executives, and they are a very minute minority, that make the decisions and set the policies for tragedies are no longer able to hide from the law or exploit the weaknesses of msha is the gentleman from california referred to earlier. the families are sick of watching low-level employees take the fall for upper level management. in the case of witnesses, they testified that massey's ceo to don blankenship about 30 minutes or more every day about the production of that mine. what happened is absolutely criminal, and congress should do everything in its power of the ability to protect, and stop rewarding this behavior.

in response to numerous question, especially from the majority side about msha did not shut down this mine, mr. don blankenship himself could have shut down the mine at any moment quicker than any government entity you or any person on the face of the earth. none of us ever want to see a disaster like this happen again. but with that statement, i do want to ask another question. the investigation points to the fact that msha does need more staff. it was a systematic problem that occurred with msha. you do need more trained staff and if the existing staff, that is often spread too thin. in southern west virginia, you have split the district to a address these kinds of problems. i understand that both districts -- neither districts are fully

staffed. that concerns me. i would like to note that what msha is doing to ensure these districts are fully staffed and that we have sufficient number of specialists to review technical issues like ventilation and what resources the agency needs to make sure that both of these districts are functioning at an optimal level and we are able to retain employees with width sufficient experience. >> thank you, congressman. i think we split the district in june of last year. we are looking for office space to move into so we can expand. we will probably take over more and more of the academy's space. but kevin strickland is on tap to figure out -- we have a number that we are moving to. we are ramping up space for those. we still have a way to go, as you said, to get to where we

want to be. we are providing additional support from the outside to get their. i would hope within the next three to four months that we have both of those districts ramped up where we have a full complement of staff. >> this is staffing with msha. there are people from other areas coming in. we have folks from district for moving into district 12. this will be stamped up -- i think with more experienced folks from him we had before. one of the benefits of hiring in 2007 and 2008 was that the crew that we brought in was some of the most experienced people that we had. i think on average about 15 years of experience. that is a benefit that we have as we get the procedures worked out as far as the agency requirements. we are moving quickly to get that fully staffed.

>> let me ask one last question. earlier you mentioned that samples were taken out of the mine on march 15 to a lab. the report to that lab was not back until post the tragedy. is there still lag time? >> when i took this job, i got a lot of surprises. one of the surprises was we have a lag that can stop us. it was a lab that was actually one of the responsibilities that was of the district itself. what we did is put that out as a national lab. we staffed it out. we have more equipment and we are doing faster sampling now. one of the things that was going on with the samples at that time was that they were doing some experimental research with a cdm

device that was being used for a quick sample. >> the general's time has expired. >> thank you for being here today, and i grew up in a coal mining community. my dad was a mining worker for 37 years. any time a disaster like this happens, it hits close to home. basically everyone i grew up with and knew were coal miners. with that, i am interested in finding out -- it says in the internal review the abatement time was 33 days when the allowable standard was seven days. why are the msha setting a deadline weeks beyond what was allowed? >> i think one of the things that we found from the intro review was one of two things. the mining company was abusing

the system and we were not doing enough to keep up with the system. some of those delays i don't think should have been emplaced. >> who makes the final decision on that? >> it probably doesn't come to the secretary's office. say you have an inspector in the mine who says there is a problem. where does the buck stop. >> there are over 13,000 mines that we inspect. sometimes things are slow all the way to the top. if you look at the process, be inspector does the action at the mine. he goes to the supervisor who does the review, up to a higher-level supervisor. >> can i get an answer. why does it go to a higher-level supervisor? >> it seems to me that that may be part of the issue, the more

people -- that is like we are playing telephone when you're a kid. the more people you have in the system, it is going to leave more places where the ball can be dropped. >> i'm sorry to interrupt. you go up to a higher-level supervisor -- and there are different -- we have a wing in the districts that are responsible for the health issues. you have an inspector who is part of the job inspecting deals and health issues. that inspector has to report to the field officer. also, to review the help things to make sure that we are doing our job, there is a help supervisor that looks at the health related things. i think that is a critical part of our operation. somehow there was a breakdown and that's not it taking care of the way that it should have. that is something we are taking a strong look at -- how we revamp, not the supervision, but

making sure that we fix those kinds of problems. i agree there is a problem. >> my point is that i'm not expecting every decision like this to go to the secretary of msha. every organization there has to be a point where the buck stops. it seems to me that the more bureaucratic the system, the more chance you are going to have to lose the ball. we also found that msha has repeated the same failures and shortcomings in each of the recent mine disasters. my question is -- and i know you're taking a lot of action, and i appreciate that. i really need to know what msha -- what ultimately is going to stop us from not learning from our mistakes and what is going

to fix this problem. if you were to identify a few things that you would need to ultimately fix this issue, what would that be? >> we cannot continue to do the same things over and over again and every time have congressional hearings and say here is where our mistakes or if we have not fixed it. >> i agree with that. that is the reason we have said the inspectors are going back and re- writing the policy manual to clean up some of the lack of clarity across -- the lack of direction and to make clear the things we found in these internal reviews and audits, clearly stated policies, and what we do is have a check system that is affected in checking those. i think what happened in the past was when you have an accident, you have an internal review. you have policies. i think that is the core of

trying to fix things as a starting place and rebuild the wagon. >> the internal review is good, but that is after it has happened. there are two ways to manage things. either proactively or reactively. it seems like msha continues to manage things in a reactive fashion instead of a proactive fashion. >> the gentleman's time has expired. >> thank you chairman chairman and the ranking member for letting me participate today. good afternoon -- good morning still. thank you for your service to our country and our state and the 11 miners that i know and care about quite a deal. i would like to thank the committee for coming to the hearing. that was a very enlightening hearing that we had. there is no question that

production is put above safety. if we go back to 2006, we had a huge tragedy in my district. we lost a lot of miners there. that is what this is all about here. the resources are really up in terms of the numbers of inspectors that were hired post- tragedy. that is the reason our resources were put in. help me with my memory here. you and i attended a reception at the charleston civic center at the end of 2009 where we were celebrating a savior was that 2009? >> yes, it was. >> for three and a half months later, the most devastating tragedy in years. at that time we talked a lot about vehicle accidents and lives that were lost with

careless operating of a vehicle. i would not say that you are taking your eye off the ball, but have you we shifted your priorities about the things that could occur in a mine and it occurred on that tragic day. what have you done to reprioritize since that meeting we had in 2009? >> i think there are things we are working on that we were doing at the time to get on track. i am a firm believer that we really need to stay focused on the things that are most apt to take a miners life. the thing in 2010 was aiming towards the most common causes of mining deaths. provision three .-dot deeper into the causes of fatalities.

we are paying attention as an industry to those. the last gentleman that raised a question, we do need to do things differently. some of the things we started off right. the thing that worried me when i took this job when i saw that 55% of my inspectors had two years or less of experience, it is something that got my attention. one of the places i thought we needed to start the quickest was to get control over the management system. to bring over field office supervisors, retrain them, make sure that they have a good program into what they need to focus on. to make sure that they understood some of the deficiencies of these past audits. unfortunately we were starting at the time of the tragedy. things like that that i think art critical. in taking a look back, a better target of finding out who the bad actors are --

>> i just want to give you a chance to clarify this. it shows there was a computer glitch that prevented a particular mind from going into the pattern of violation, which is obviously a category of which closure would be available. have you had a chance to fix this glitch? >> it got fixed quick. we found it and fixed it. we spend quality time with the inspector general's office and got a lot of help from them. we inspected anything else that needed a problem. this program was put into effect in 2007. the folks who are putting the data in failed to put in certain data in certain categories. >> let me just say in terms of

inspectors, we cannot pass fast-forward the clock. we cannot give somebody to years of experience. we have to make sure that the training and experience take it is geared towards safety for the miners right now. they cannot have lack of knowledge or too much complexity. i want to be assured that i leave this hearing today with inspectors that are there now -- but they do have the expense of any tab. i know that my time is up. >> the gentle lady's time is up. i want to take the secretary for being with us today. your patience and answers are very help all. >> mr. holt. you are recognized. >> thank you very much,

secretary. it seems to me a key question that we come back to. whether the sanctions are so minor that the poor performers have very little incentive to clean up their acts. forgive me if i am retreading grounded havarti vanover, but it seems to me to be a key question. what do we need to do legislatively to strengthen the sanctions? >> i have talked about this today. i think there was already good legislation that was before this body. it deals with things that are very fundamental. one is giving miners better

protection, giving them the opportunity to speak out. i believe that those operators are giving the best tools we are throwing at them it. given these of our actions to encourage things like advanced notice, some still don't get it -- we need to deal with that. >> the state of west virginia has done that, i guess. it needs to be done at a federal level. >> there are more tools that we need to do -- effectively do our job. >> i want to thank you for your work. some might ask why would a representative from new jersey be involved in this. i think you know, i grew up around miners. i really respect the work they do, and it is very criminal the way they have been treated. i want to make sure that those who engage in criminal behavior are treated like criminals. we have to make sure that the

sanctions are real. thank you very much. >> will the gentleman yield? >> i would be happy to yield. >> we are about ready to leave here. could use a simply tell us what legislation we have to pass to make a difference to the miners, because we cannot just clear up bureaucracy because we will be right back where we started. that is not going to change. what is missing in this picture? >> i want to start with -- one of the things that we said if there r. a lot of things we can do better. we need to. >> i'm working up a letter to the point that there r. a lot of things we are undertaking to fix. we are looking at regulatory improvements out of upper big branch tragedy even with those come at the end of the day her mother are still those things that are left that we do not think that we have the current

tools to fix. that is to figure out a way to give miners a better voice. that is to have a law that has respect where the criminal sanctions are -- one that deters bad behavior that gets the bad folks that are acting like the good folks out of there. ways we can get information and ways we are fully enforcing law. >> what about subpoena power? i would just say that in west virginia, we would not have even asked in a legal way were demanded in a legal way people to answer questions in west virginia. we don't have that. >> would that be possible for you, for msha? that is something we supported them, and i don't think anything has changed. >> i would be happy to yield to my friend.

>> you have to be able to get the facts regardless of what the issue is if you want to get the facts whether investigation or accident. if you don't get the questions answered, that could be a problem in the investigation. yes. >> thank you, mr. sir secretary. >> thank you very much for being with us today. we appreciate your patience. i will ask the second panel to come forward now. >> think you, mr. chairman

each of you for your testimony and i will remind you i know all of you have been here. we have a green light, yellow light and red light, the green light will indicate you have five minutes, the yellow light you have one minute and the red light we would ask you to know what your testimony coming your entire written testimony will be

included in the record. so you can summarize if you would like. with that, we will start with mr. shapiro. you are recognized, sir. >> i will summarize my written statement. is it on now? thank you, mr. sherman for inviting me to testify this morning with respect to the oig report on allegations of retaliation and intimidation related to the accident investigation. in march of 2011, we received a complaint from the united mineworkers of america alleging that attorneys for preferments call and the attorneys for montcoal were holding private meetings to discuss important issues and they were inappropriately making deals which in some cases resulted in

vacating safety citations and orders. we have received representing performance called the alleged misconduct by norman page who was heading up the uvv investigation for msha. but the oig decided to do is address the complaints been looking at five separate incidents cited in the performance kohl complained one of which was also referenced in the umw complaint. the first incident involves the issuance of a safety order citation to dr. christopher shuttle who was one of the performance expert consultants, and the order institution would have required him to withdraw until he had received 40 hours of new training. what we found is that mr. page wasn't the impetus for the action and that he was only

marginally involved. another citation in this case issued to another consultant dr. pedro. this order and citation required, would have required to withdraw some refresher safety training. the citations were issued in retaliation for the complaint which they performance coal had fired regarding an incident which took place in the mining and involved. again in this case we found the citation in order or not issued as a result of any retaliation by mr. page or anybody in msha. it was issued as the result of the personal observations of several inspectors regarding the conduct and behavior in the

mind. i would note that this was the order and citation the was also cited by the umw way in their complaint albeit a very different perspective. the first incident involved a meeting between mr. page and dr. shom all to discuss the citation order and that took place because she was a subcontractor for dr. shettle. during the meeting mr. page allegedly threatened him with further citations and orders and other negative effects on the company if he didn't accept the citation issue with respect. we found that mr. page didn't intend to retaliate against performance coal during this meeting. the fourth incident involved the scheduling of an inspection of the rescue station that serviced the mine and found that the decision to schedule the

inspection by the district six inspectors who were unaware that a recent inspection of the rescue station had already been done by the district when they learned of the recent inspection they canceled the inspection that they were going to do, so again, we found no evidence of retaliation. the fifth incident involves the issuance of another order banning another employee of another consultant from entering the mine until he received new training and again we found that he was not involved in the decision to issue the order and a citation in the case. so in summary, mr. chairman, we reviewed these incidents did not substantiate the allegation that mr. page engaged in any pattern of retaliation, nor did we find that msha as an entity engaged such a pattern and of mr. page's

best or otherwise. during the review we did identify the questionable management actions. one of these was the ultimate decision made by officials from msha and the office of the solicitor to vacate the order was made not based upon the safety merits but rather was made to avoid an appearance of retaliation and to avoid possible congressional scrutiny. in response to the report from the department generally agreed with our findings they decided to vacate related to dr. rusco on the condition that he received additional safety training which he did. in conclusion mr. chairman i would reiterate our primary objective is to review the allegations against mr. page who didn't substantiate those obligations and i would certainly be pleased to answer any questions you may have or any members of the committee.

>> thank you mr. chairman and ranking member miller for calling this hearing them to thank all of the panel members who've participated in this coming and think you so much on behalf of the coal miners of the united states for congress' concern about the health and safety of coal miners in the united states. i want to also very much sphinx you for remembering the families and the lost miners. many of these people were my friends. i grew up with some of these people but lost their lives but i didn't know the miners themselves i knew someone in their families. this morning i would like to in particular remember the davis family, linda davis and charles davis and the grandson's in the

tragedy. the past two years have been difficult and unfortunately on friday and was a wonderful lady. one of the things i would recommend people have been asking what can we do, one of the first things i would suggest that should be bipartisan is the families get treated better when the families tragedies occur. a miner working in the union mine can designate someone to represent them in the investigation that happened in the upper big branch where more than two miners designated the united mineworkers to represent them so we were representatives of the miners at upper big branch. the families do not enjoy that and i have to tell you that that's something that is discussed very much through the fields of how tragic that is

what the people that have suffered the most can't have someone representing them when the hearings are ongoing and when investigation itself is ongoing. i don't think anyone sitting in front of me believes that is correct. one of the things i believe we can do here is correct that situation. we have to have three things in order for something like upper big branch not to occur again. number one, we have to have an operator that is willing to follow the law. first obligation here is for the industry to protect the coal miners. member to come we have to have an agency that fully enforces the law and three in power to speak out for themselves. i want to report to you today the number of these ingredients existed at upper big branch. we know we we have heard testimony repeated that we get

an offer operator that was recalcitrant and dictatorial and it wasn't just the upper big branch, all of these operated by massey industry you could find solace situations and in fact msha has found the same situations existing the same dangerous conditions existing before they turned the operations over to the natural resources and i want to remind you don blankenship sent to all of the superintendent's he believed and the miners believed most people in west virginia believed she was above the law, he was of the governor and this congress right here so you will know that is how he was

perceived in southern west virginia. if any of you have been asked by your group president supervisors, engineers or anyone else to do anything other than ron cole such as overcast which takes a ventilation to the working section the construction jobs or whatever, you need to ignore them and run coal. we seem not to understand that coal pays the bill. we have said the people like don blankenship, and i've called for him to be led away and changed and locked up because that's where he deserves to be because if any one person is responsible it's don blankenship. number two, we have to clarify the authority. we've repeatedly said why didn't

they close this down? let's clarify that authority. if we believe that is what they should do when they find circumstances like they found, let's clarify that authority and say if you want to do something for the coal miners of the united states of america, you stand behind whoever is running msha and say to the operators that may choose to operate like a don blankenship did the the congress of the united states, republican and democratic ally could stand behind the and force the agency of the united states and see the we do not see these conditions again. number three, workers need to be uncovered and if you can do one thing before you leave the session of congress, let's give the power to the coal miner himself because as we are sitting in this room today i guarantee you some form and somewhere is telling a miner to

the lumber dillinger a miner to do something that is going to get him hurt and to do something that's going to get him killed and that should be a felony. that coal miners should be able to say i am not doing that. i'm exercising the right congress gave me, and if you continue to tell me to do something dangerous, you are going to jail. they don't have that ability today as we speak because they know they will be fired and they won't have a job and they won't find another job. thank you. i would be glad to answer any questions that you have. >> good after and, mr. chairman, ranking member, other members of the committee my name is jeffrey and i am the isasi director for mining at the national institute for occupational safety and health, and the director of the office of mine safety research to refine pleased to be here today to provide a brief update on our activities related to the

liner act and speak about the work of an independent panel that assessed the process and outcomes of the safety and health administration internal review of the ubb mining disaster. we continue to work with our partners and labor industry and government to develop and implement practical solutions to mining safety and health problems. our primary focus remains on prevention and towards that and we've implemented intervention to reduce to prevent the false and coal dust explosions among others. for example it became available this past june. i worked in the technology rio has led to the commercialization and communications medium frequency systems such as the medium frequency system also the lockheed martin post accident functionality. despite all the progress, the explosion at ubb serves as a

reminder more remains to be done. following the disaster, the secretary of labor requested the director to the independent of speed at ten to assess the problems and out comes of the internal investigation. i was appointed to that panel and i speak to you next about my role as a panel member. it wasn't cleared prior to its release. all of the operators must take a proactive role to ensure the safety of the workers and as the accident investigations have concluded, massey crossed the explosion at the ubb line. it's impossible to nome how many deaths have been prevented from the enforcement actions yet in those and sent to the consensus we must understand, learn from

and to actions to prevent her devotee the cut future occurrences. the internal investigation team was thorough and disclosed every deficiency that it found in its enforcement performance. the review of the internal review for other disasters also reveals a candid and a detailed disclosure of shortcomings in in the enforcement performance. the same or very similar deficiencies show up in many of these internal reviews. now as in the previous internal reviews a detailed set of recommendations has been put forth to fix the identified problems. no doubt those recommendations would be helpful if implemented. but we do not believe, the panel doesn't believe that leaving more of the same, or training, changes to the handbooks and procedures and policies will achieve the desired performance

they expect. we believe there are underlying problems which have developed over the years that must be solved. the report of the internal review and the interview transcript detail a work force of inspectors, specialists and supervisors that is severely overloaded and trying to accomplish a lengthy set of duties that isn't fully doable. with the insights we gain from our assessment we've developed for overarching recommendations the we believe should be implemented. the first recommendation is for the country inns of analysis of the current enforcement paradigm to identify and repair in the underlying weaknesses. we cannot continue to do the same thing and expect a different and better not come. as part of the recommendation, we have suggested several topics we believe should be included in the comprehensive discussion,

work force and a workforce readiness issues, continuing challenges in the plan approval process and better use of an formation technology to aid in enforcement among others second, we've recommended changes to the internal review policy itself to enhance the value of their process. third, we've recommended independent oversight to ensure successful implementation of the recommendations. finally, we've recommended technical investigations to support the development of best practices guidelines and inform statutory or did reactivity is in particular improve monitoring explosion prevention and ventilation practices. in closing we continue to work to protect america's mineworkers and research activities will enable together with msha and industry to protect the workers. thank you mr. chairman and i

would be pleased to answer any questions. >> thank you to all of you. it looks like you've got something next to you on the table that would appear is that ready for prime time? >> yes, it is. >> you believe it can be used as a compliance toole right now? >> that's correct. thank you very much. again, dr. kohler, west virginia, as so many investigations, west virginia ubb report made a recommendation to further study active and passive barriers. can you explain the previous work amiriyah and when you need to complete the study?

>> active and passive barriers' serve as a secondary means of clenching an explosion once it has started. active and passive barriers would offer the opportunity to be placed in certain strategic locations, for example certain countries so that the other mechanisms fail and there were an explosion the barriers would most likely clenched the explosion. in order to implement the barriers, there are a few remaining questions that need to be done and west virginia recommended there is some additional research we need to build on the work that we did several years ago. at the experimental mine, for example, that facility has the ability to do the kind of work that needs to be done to verify and to provide the best practices for applying active and passive barriers. estimate okay. i'm not sure understand what you

need to complete the study but thank you for the answer. i want to pick up on something i talked about earlier and we have been sort of stepping around this every day. the independent review stresses that msha's internal review perhaps failed to address the broad important issue that is, quote, but a more effective in for some effort had prevented the ubb explosion. looking beyond the specifics of the question for the moment, how do you believe they could best understand the issues concerning its involvement in the upper big branch? >> i think the panel believes there are a number of underlying systemic issues in terms of the work force, work force readiness, the expectations placed on the inspectors, a wide range of issues that need to be examined. it's simply not a matter of improving training for inspectors or simply a matter of free writing books and handbooks

but rather trying to probe more deeply into why these things persist event after event. >> did they provide experts during the active investigation? >> yes, the agency provided technical analysis, laboratory work and advice. specks of they were on site or not on site or a mixture? >> not on site. >> so they were just there to answer questions. >> or conduct laboratory work at the facility. islamic just keeping with you i'm sure we are going to get to everybody else in imminent. we were talking about the mining technology a lot. ever since on the committee be to cut communications devices and chambers and so forth. one thing that has been discussed is the best thing is

it ready? >> i can't speak to specifically whether or not it is ready. is certainly is experimental delegation that needs to be done before it could be applied to meet the regulatory requirements. it is a new process of applying rock dust savitt eight adheres better to the walls without producing respirable dust down wind. it is a process that is being advocated as an improvement, and i think that it's pending further study. it may represent an important improvement. islamic thank you. i see my time is about to expire. mr. miller? >> what are your recommendations to evaluate the requirements for the inspections? >> not exactly. we are not recommending that.

the recommendation was to look more broadly at our current enforcement expectation or model, and to put on the table some ideas to begin that discussion we suggested seven or eight topics, one of which is the number of inspections. the transcript and the internal review the detail work force stretched so thin that it's difficult for them to be successful in their work. and so, if the resource is ineffective, and it begs the question how or reallocating resources, is it important, should we be doing more or less of it? >> when you look at those recommendations? >> yes, i have. >> in your opinion? >> some of the recommendations -- and i'm glad that dr. kohler clarified the one of the quarterly inspections, we feel that they've been referred to in

the industry are extremely important. some of the other recommendations appear to be saying let's give more responsibility to the cooperators and the management and take some of that responsibility away from msha. we would be opposed to that committee and i think if we can just point to pre-1969 when that existed, and i would remind the panel if you go back to 40 years preceding the 69 act and deutsch to the analysis of what happened 40 years after coming you will find 40 some thousand miners lost their lives and less than 3,000 lost their lives 40 years after. so we would have to say that legislation that was passed by congress has saved a lot of lives and the things you do here are important. >> but in terms of looking at the inspection regime on the assumes you are trying to determine is what is effective and what isn't and what could be

changed to make it more effective because obviously the record you plead with in the inspections were we just have the planning violations over and over again. that is what is discussed earlier. what are we using this as the mining inspectors time in the best interest of creating a work place? >> yes and also asking the question what can we do to change the fact that the internal investigation after internal investigation we see a similar pattern. tariffs but there are suggestions by the panel. >> the follow-on, as the internal? >> in terms of the follow-on, we are hoping that someone will constitute a group of people. >> that hasn't been determined

yet? >> not at all. disconnect the mining workers and others. >> we said this body should include labor industry and academia government. >> president roberts, three or four of us have asked the question when you have a bad actor how do you get rid of the bad actor because we have been unable to do that today. we get into a lot of penalties and citations, we get into a lot of court actions back-and-forth but we don't get rid of the bad actor as a pattern to the tragedy, so how do we do that? >> i would suggest to you that the government charged with protecting the miners does not possess the tools, the achieved goals everyone seems to be interested in achieving. that is if you have massey and someone like don blankenship running them, number one, the

penalties come under the mine act they are ridiculously low. we just saw that of the canyon that isn't even half a day's work or production. so the penalties are extremely low. no one is to pay particular attention to that. the penalties have to go up the latter half year than they do currently. when we put an informant in jail the person that told them what to do is still walking round free yet clear so we have to be civil to go up the ladder to the chief executive of the company if that is who is making the decisions and putting others at risk. that's got to be a felony and written into law and it doesn't exist right now. >> the gentleman's time is expired. i recognize myself. mr. shapiro, thanks for being here. it's your testimony notes that

oig found mr. page, the leader of the investigation team to have used and i quote the poor judgment dealing with the representatives and that he, quote, made statements that could have been perceived or interpreted as intimidating significant statement there. first, can you please explain what mr. page said could have been perceived as intimidating? >> mr. page when he discussed this with dr. shettle had brought up the possibility that if the order was not vacated and involved, if the order was not vacated, there was a possibility that complaints would be filed against his company that these complaints would have to be investigated by msha and could end up leaving a black mark upon

his reputation in the industry. at one point, mr. page referred to a picture that he had gotten from the umw a come and dr. shettle believed that was a picture of him and so all of this was the sort of dialogue that went on that lead us to conclude he could have received she was being intimidated if he did not agree to vacate the safety order that involved dr. rezko to read as we have seen in the report it appeared that mr. page was trying to legitimately broker a deal and try to please all parties being

performance and the umw and msha because he was legitimately concerned and several people told us this even people with performance that the investigation would be in he did if msha had to investigate safety complaints whether it came from the umw way or anywhere else. the statutory we have to investigate all of these complaints and mr. page's primary objective was to complete this investigation, so that was the scenario in which we concluded that there could have been at least a perception of intimidation that we didn't conclude that that was the intent in the conversation. estimate i guess in light of that, second, can you explain your understanding of why mr. page was in a position where

he was having a closed door meetings with massey representatives and making comments that could've been received as intimidating? >> i'm not sure i can answer for msha to say why he was in that position, what we were told is that an agreement had been reached between the performance attorneys and the msha attorneys to vacate the order and citation and receive the training. but mr. page was concerned that if that occurred at the order and city schumer vacated there may be a flurry of complaints that he would have to investigate and therefore impede the investigation, and mr. page asked if i could try to sit down with dr. chavanel and work that out into this led to the meeting he was advised by the officials why don't you see what you can do. >> it appears that that then

indeed could have taken away from mr. pages ability to conduct the investigation of the explosion. would you agree or wouldn't you? >> i'm sorry, what could have? >> that it would have taken away these activities he is involved with took away from mr. page's ability to conduct investigation of the explosion. >> i'm still not sure which activities you are referring to. >> the activities being with massey involved in the closed door meetings, the intimidation perception that was there to respect i'm not sure how i see the meeting itself would have taken away from his role as the head of the investigations what he was concerned about is the complaints would be filed and the complaints, safety

complaints would have to be investigated and they would impede the investigation. the walls of the meeting itself that was the concern. >> i appreciate that. i think that is what i was trying to get at. my time is expired. >> thank you very much. so, mr. roberts, it appears msha doesn't have the power the need to stop the bad actors workers that doesn't even appear in certain they don't come and workers are unable to work within their company at the job site when they are the ones that know if there is a danger they can't identify the hazards or do anything about them without fear of losing their jobs, and congress as of this moment any way hasn't done anything to

change this treen will you tell us from your perspective as a representative of these workers why don't they just walked off the job? >> walk off the job, congresswoman, they will be fired, and in the case if you go back prior to massey selling these, most of the mines in southern west virginia were massey, savitt is not just a matter if you are terminated you went down to my indy 500 and got a job. you ran into the same employer at mine d and e would have to leave the area to find a job in the mining industry. the more sophisticated form of

mine bullying. >> i think we all remember when we were one of the mothers of the miners that had lost his life. he would come home every night and it was like he was unbelievable that he could drive home because by the time he got through with his day in the mine , the oxygen in his blood was so contaminated and she would say to him why don't you first go to your management? i can't. then why do you keep this job? and he said there are no other jobs. i'm risking my life and i know at. they wouldn't allow an employer

to retaliate against an employee that pointed out the hazard why do the miners have to put up with that? >> what do we need to do to change that? i'd like to ask you that. >> i can answer that if you'd like. first of all i think technically the law supposedly protect the miners, but there is the law and there is the reality. miners in southern west virginia do not believe for a bomb believed particularly when don blankenship was running the mines that anybody could protect them. they didn't believe the governor could, the congress could, they didn't believe the president of the united states could keep their job or protect them from don blankenship, and you have to

understand the type of individual this was. he visited the mines and flaunted his power and authority and he was recovery and he had a long, long history of that. so what you have to do if you want to prevent this in the future we don't have many of these types of people. i just want to make sure we are clear on this most don't operate like this. but you are going to have those type of people from time to time, and you have to protect them from that and right into the law that the people put miners in unsafe conditions it is jail time. >> you've been sitting in a sick tree main's seat what would you have said we need to do? >> have i been sitting in the seat -- let me just -- what we have publicly said that the mine

should have been closed and there's been a debate about the situations for 40 years now whether it has the authority or not coming and we said it should of been closed. we think there could have been enough paperwork and things may be going into court or whatever does it has been pointed out it would have taken a long time. we need to grant whoever the assistant secretary is that authorities we don't have this again, because i don't think it is clear into law that they have this kind of authority. >> i recognize. >> thank you. >> the critical defense that led to the upper big branch tragedy and friction of the ignition, ignition of the methane gas and explosion of the best. can you kind of walk us through

each one of those and give me a kind of a synopsis of where the involvement in the actions and respect of these had they been done properly could have prevented this? >> let's take the friction ignition at the long wall describe what it is and then tell what could have been done. >> as it is rotating and the tear into the coal, when the st. hard rock you create some heat and if they are broken, you can create quite a bit of heat and you can leave a firm will sneer which indeed can be hot enough to ignite methane and when that occurs it is known as a fractional technician commesso one question is was their anything that could have been done to have previously detected enforcement action to prevent from being in the condition that was found where they were broken

and missing and also the inoperative sprays and the the panel looking at the findings of the internal review decided there was nothing they could have done and the enforcement cents to enforce the fractional addition wouldn't have occurred. she basically walked around and check the call on air quality and all that as an examiner so i know about that that could have been done about that. >> based on the findings of the investigations there was an accumulation of methane which then ignited probably from the fractional ignition.

>> the control the air flow through the mind why is there any accumulation are they not putting up the appropriate things to direct their the rate needed to be that's a bigger issue and the panel i served on did not redo any part of the investigation. we simply use the facts that they gleamed said there was an excess amount of methane that had accumulated a very effective way to reduce the accumulations of methane for ventilating proper. there wasn't proper -- >> one of the reasons that there was improper ventilating down at the mine is because of a partial blockage in the tailgate entry from the roof fault.

they would have seen that that was in a proper he would have reported that and that would have been corrected or the next shift couldn't come on the call mine so why did that have been quiescent. >> they didn't do anything about estimate can't imagine the examiner would refer you call him today wasn't in support of that and say -- >> it's pretty simple you hold up the air flow meter and it tells you the the air is moving and what direction. >> the internal investigation revealed that portion of the tail gate had been visited and inspected four times to notice that they were missing supplemental report. if the support had been in place

is less likely that they would have been such a roof fall that blocked the air. >> my final question, and this will be something i'm not implying any impropriety anywhere along the line, but was there any evidence anywhere along the line for the financial incentive of anyone in this process other than the operator not to correct these problems? corev the problems were identified the financial incentive not to report them properly? >> there was nothing we found in the internal review that would suggest that. >> as a follow-up, do you think it seems my time has expired, so i will yield back. thank you. >> thanks for being observant. from west virginia mr. rahall. >> thank you. i think the panel for their testimony this morning as well as you, mr. roberts for all that

you do for the nation's coal miners. i agree with you that one of the critical voices or perhaps you didn't say this, but i am discussing today's hearing are those of the families. for that reason i would like to read a part of the statement that was sent to the committee who parish and then perhaps get your thoughts on that. quote, something is going to have to be changed that these people that are in charge of running them need to be accountable to read this is to keep happening because they said we would protect you to these companies, not the miners. how many more will go on perished because of the laws that go back to 69? they were afraid to touch aplington gypsum he was let go, he wanted to run the company. my son and 28 others were at work and had no one protecting them. don't let your debt be in vain

and another family be destroyed. this would ask unanimous consent his entire letter been a part of the record is not now then the proper time. >> without objection. >> there was a boss by the name of dean jones who perished that wanted to bring his crew out not once but several times because they had no air. he was told if you do so then bring your bucket and look for another job they stayed because he needed his job even if his life was in danger because these men being threatened, they are now dead. i know you've touched on this already, president roberts and response to the earlier question and there are no other jobs in the coal miners really need good pay to associate with working in our underground mines that still something is missing when there is that production factor to the for the people factor and the

safety factor. perhaps -- and as i said i know you already commented on the letter but can you relate to what inspections are like in a union versus non-union mine. >> thank you congressman, i would like to follow-up on edward jones. at the time we release our report, and mr. jones did keep his men off the section because he didn't think it was safe and for that he was told he would discharge if he didn't go up on the section of an unsafe area. we would have more people live today and this wouldn't happen.

we have good people everywhere trying to do the right thing. we just gave them a little more authority and power but there is a world of difference between an inspection and day union mine. there is a three minimum health and safety committee representative of the mineworkers. the trouble with federal inspectors and the state inspectors, and they have filed reports on their own in a respect them themselves at least four times a year and in some places the entire line every month. so there's another supply is that being a representative of the workers and all of the union lines and that isn't true that most of the union lines. the protections they have for the federline inspectors and in some instances the state inspectors, so it is a world of difference. >> thank you. dr. kohler let me ask do you feel you have sufficient personnel now and experienced personnel and if so, how do you

keep them with you? >> the work force challenge is spread across the industry. they are not gist compliant. we experience them at the universities, the operators, everyone is struggling to hire and recruit talented personnel. just to give you an example, they both compete for entry-level mining engineers. mengin and engineer student coming out of kentucky for example starts in 65 to $70,000 a year. we can offer that same graduating student $33,000 a year. it's easy to see the difficulty that we have competing. it's a big problem.

>> i think if we wanted you to recruit and retain competent people we have to have compensation schedules which don't necessarily match those available outside of the government but they have to close the gap. >> not fully but if we're serious about recruiting and retaining quality people in these key positions, something has to be examined and action taken. >> i recognize the ranking member on the work force protection is ms. woolsey. >> hinchey for the closing marks no doubt. >> it's clear that today we recognize that the entire system fails the miners set up for big branch test congress should not have slashed funding for the inspectors. msha needed to do a better job.

the bureaucracy obviously needs to be shrugged to bring it into the 21st century, but they didn't do anything on purpose. and massey exploited msha's weaknesses, and the weaknesses in the law, and they hurt the workers. this is the 21st century together in a bipartisan way, mr. sherman, and it's your subcommittee that i am honored to be the ranking member of. we have to put our heads together and ensure that we move into the 21st century that we enact meaningful reform otherwise we are not going to be honoring the lives or the deaths of 29 workers who spilled their blood in the upper big branch

and we cannot let them be forgotten. they should have taught us a lesson and if they didn't then we are dumber than males and we won't move forward we will keep spending in a circle talking about it until the next disaster occurs. i don't want that to happen so let us work together so that it doesn't. i would yield back. >> i thank the gentlelady and certainly, there's a commitment to work towards fostering better results the safety. the act as you know declares, and i quote from it, the first priority and concern of all of the mining industry must be the health and safety of its most precious resource, the miner. and i think in this room we understand that there may be differences of opinion and perception of the facts and the way we look at the facts come

certainly we have seen evidence today that the funding issue has continued to increase. how that has worked out, there may be questions how we use it, but bureaucratic problems we've put in the way and what things we neglect to encourage more. the opportunities we've had to visit together we have seen some best practices that are very useful in promoting health and safety for workers as well as promoting economic stability for the mine itself and i think we need to capitalize on those things. i appreciate the panel in front of me as well as director psychiatry main in being in front of us this morning as well with the questions that were brought up and the comments that were made for a final -- site to cut back, not a final conclusion

but an ongoing conclusion of how we move forward and is extremely important industry which people who do things that i've already indicated to you i'm not a miner and i don't intend to be other than mining for a way of industry that works in it to foster a situation that moves its country forward. that comes by carefully looking at the problems, looking for solutions and looking for ways we can be in the sense of being intrusive in the industry but also doing the proper oversight that makes sure that we all move forward with safety and security. the testimony is given today and the comments will assist us in doing exactly what my ranking member says in working out a

suitable agreement in the not too distant future. having said that, there being no further business, the committee stands adjourned. >> [inaudible conversations]

stupak we are talking now about the supreme court. but they are the ones that change this country inevitably with what we call the largest progress. the march towards knocking down walls of discrimination, that permitted us to pass the 1964 civil rights act and public accommodations so people could go into restaurants and go into hotels, public accommodation. the 65 fact for voting rights, the 68 act the public accommodations, 1973 to say that women are going to be treated

equally. the disability act that says they will be a part of the american family. all of that is the march to progress. and my friends, the one organization, the one institution that protects us is the supreme court of the united states.

good morning, everybody.

today's hearing continues a series of posture hearings that the armed services committee is conducting on our combatant commands with the context of the fiscal year 2013 budget request and the president's new strategic guidance. today we receive testimony from the u.s. strategic command and u.s. cyber command, a subsundayified command of the u.s. strategic command. let me welcome general robert kaler, the commander of the u.s. strategic command and general keith alexander, the commander of the u.s. cyber command and thank them both for their service to our nation. we also want to thank the fine men and women who serve in these commands for their dedication and service to our nation and a special thanks to their families. strategic command manages nine missions across the department of defense. these missions range from