to prevent unscrupulous officers giving advanced notice. up with made it as effective as possible. we have placed two mines on a pattern of violations subject to the process. despite our efforts the system is still lawed. our proposal that we've announced would addressed it and made it less effective and what con gris intended for it to be. the health and safety requirements, regulatory action to improve compliance and mandatory training of all field all field supervisors and reorganize the enhanced enforcement actions and increased efforts to protect

miners from discrimination. the majority of officers try to obey the law. however, there's still operators who front the law. we are implementing not enough. as part of the congressional hearings we have made clear we do need legislative reform without cutting the many thousands of miners in death, injury, and illness. in trying to outfox the operators and focused improvements. congress should address the process and work to strengthen and tolerate employers who knowingly risking the lives of workers and providing advanced notice of inspections. and ensure they are fully

protected from retaliation. and miners were often aphrased trade to speak out because they fear losing their jobs. i look forward to working with the committee of providing nation miners the things they deserve. thank you, mr. chairman. >> thank you, mr. secretary. you mentioned in your testimony and every investigation and every report and they have made it clear that massey was operating outside of the law. there is no question. they are officially one of the bad guys here. you're here today representing the agency that is tasked with ensuring the safety of our mines and that included the safety of

the upper big branch. so i'd like to quote again from the independent review where they said if they had engaged in timely enforcement of the mine act and applicable standards and regulations it would have lessened the chances of and possibly could have prevented the upper big branch explosion do you agree with that statement? >> you know, i have to say this. if you look at all of the investigative findings thus far and i believe they pointed this out, that massey caused this disaster. having said that, it could or could not have been preventible. we look at all of the facts on the table. i haven't seen thes that tell me

there's a lot of things we could have done differently. and they could have shut it down in a heartbeat. i really believe that. >> so the question sort of remains that there were a number of opportunities and we've seen that in your own investigation to see what was going on even though they were in violation of the law. this seems pretty clear to me that if they inengaged in standards, it would have lessened the chances of and possibly prevented the explosion and your and try to plow through

everything and some of the issues raised that maybe point a closer fix on the question thaw raise or the inspections that were done over the last inspection period. the question is, did they identify if they didn't take appropriate action on? i have found no case where they identify and with regard to the inspections that you refer to, the foreign inspections, actually the foreign inspections that took place only one of them is a regular inspection. the others were in i think one case an inspection that took place where a team of inspectors went to the mine for the purpose of issuing an order upon arrival and spent time with the ventilation problem and i think

the other inspection that was involved in the foreign inspections was where an inspector went up to the tailgate but in an entry that was the return off of tailgate 22. it's isolated from the whole tailgate entries. so there's series of facts there. i think we have to look keeper at. but, you know, in terms of the rock dusting issue, let me swing back to that, i don't know if you folks have had a chance to read the testimony of the superintendent gary may who testified before a sentencing proceeding about three weeks ago where he and he even said a that whenever they would come into the mine he would scatter rock dust around and basically to

hurry it up and look like they had been rock dusting. in the areas that the inspectors were in, prior to the explosion, they were up on head gate 22, which was a development section on the northern side of the mine. this is where the explosion force was the worst in that mine that we found. on march the 15th, inspectors went into that section, did their inspection, sampled the rock dust and what the lab found was at that time that section was basically in compliance. all of the samples were in compliance. between the 15th of march, and april 5th, something happened and the inspectors were not in that area. if you look at the company's record books during that period, it appears that there was a lot of dust and combustible material loading up. if you look at the building which for the long hall was and

on march 15th conducted an inspection, issued an order on the tail drive of the belt and had a belt itself. and they went back in on the 24th of march to make their last inspection which they required the company to clean it up and that was terminated based on the inspection and that was the last time an inspector was in that area. and if you look at the company record books of the coal dust and the coal spilling from the date of the explosion back, you're going to find a listing of conditions. >> my time has expired and i know i have all of my colleagues either to engage in this kfrg. so i'm sure we will continue to pull this out.

unfortunately, it depends on which of the company books you were looking at, the ones that they cooked or the real ones. mr. miller. >> finding the opening statement thank you very much for your leadership and thank you for your leadership in response to this tragedy and in rebuilding the resources so we don't have to go through this again hopefully ever again. i want to read from the court transcript back and forth with the u.s. and the question is, while you're at the upper big branch, is that and can you tell

us the beginning to tell us beginning to end how these warnings were communicated? and announced over the company on property from that point it would be received at the office and from the office they would call underground and let us know that we have the company. skipping forward, question, how often were the warnings given to the inspectors coming on the property? answer, a lot. question, was it most of the time? answer, yes. question, was the upper big branch mine able to avoid advanced warning of the inspections? answer, yes. do you know if it is t was illegal to give notice of a mine inspection? yes, i knew it was unlawful. question, did your superiors at upper big branch and give advanced notice to inspections? answer, yes. did they encourage it?

yes, they did. when asked whether he would spread rock dust when he was warned inspectors coming, he answered, quote, i always spread extra rock dust to make sure everything looked good, end quote. how do you conduct inspections in that kind of atmosphere? >> it's almost impossible to be able to enforce the law in those kinds of activities in place. >> does your report corroborate with what mr. may said most of the time. >> despite that plan, they issued more closure orders than anybody in the united states. so i think that showed the fact that we had pretty aggressive

investors. >> it was a cool cue lated interference and efforts to shut down operations or clean them up prior to letting the inspectors come to that part of the active mine. is that correct? >> i think they hit a hid a lot of stuff from regulators, yes. >> now, in the report it's pretty clear they did not take action. is that correct? >> i'm sorry. >> in the criticisms of the agency, the suggestion has been

that action was not taken. >> i don't think there's any question that there is anything we could have done better at upper big branch. it was well articulated by the superintendent may was a challenge sometimes beyond the capability of any inspector, even experienced inspector to catch up with. >> in your internal review, you say, however, just before did not collect rock dust samples in the long hall gate entries at ugb after they began production or about they direct them to do so. so was the guidance wrong or inspectors not doing their job or improper guidance? >> there was an improper guidance. there was a serious problem with

the poll teas from that point forward you were on your own to develop policies and to implement those and generated from 2004 forward and you may or may not have known about one of those and how do best rock dust sampling in the mine. >> thank you. >> thank you, mr. chairman. mr. main, one of the conditions that led to the catastrophic explosion was coal dust. belts had been rolling through coal dust. the independent panel stated the mine operation did not and could not conceal readily observable

violate coal dust throughout the ubb mine and as mr. woolsley talked about. >> if you start with the explosion itself and the area where the explosion occurred and where the fuel was at to cause that explosion, we have to examine, is there something we missed in that area that was part of the explosion? what i'm trying to explain is that in that area i didn't see any evidence from any of the reports that i found that inspectors did not take appropriate action. what they did inspect and find in the critical areas.

how did we have such an explosion off the tailgate? and there is no methodology in the investigation of continuing rock dust in that area. what we found was the inspection was made of that area happened through a three-day period. we had ventilation specialist in that area, training in that area, and inspector in that area and it all dealt with an issue close down to the mine because of the ventilation problem. and this was an area into the parking lot of the massey upper big branch mine. the word used was hail storm when one inspector showed up. it took an hour and a half to

get up to that spot and just before they got to that location, i think it was about 9:48 a.m., the company shut down and claimed that they had a problem. this is according to their records. it was so convenient for that to happen. the inspectors arrived at the area, hour and a half two hours after they showed up on the property and if mr. mace instructions that they used to get in the area that we're talking about it's not a large area. the question that everybody has to ask, did they spend three days or was there something done ahead of them? how these inspectors could have coal dust unless it was not to be seen. i don't know. when we get to the bottom of -- >> okay. let's talk about the internal

review and it sounds like you're saying regardless of whether we had experienced or inexperienced inspectors, it might have been missed yet if they were there on the day of the explosion they would have caught it. >> some of the conditions were bother some that were identified but in terms of the conditions that existed, the $64 question is, did that company do something that was masking what they were doing. >> i'm trying to focus on the inspector inexperienced. do you agree that the inspectors were inexperienced? >> absolutely. >> when do you think they will be adequately trained and do you believe they are now? >> let me talk about that.

there was a severe staffing problem that was created in 2001 when there was a flat lining budget which they had to cut back on ftes to be able to stay at the funding levels and in 2004 there's a budget cut and at the same time you saw a major retirement take place and it was pretty overwhelming. 1,000 people led that agency. i think there were 690 something out of 1100 that left the coal enforcement rank. congress made a wise decision in 2006 and was able to start hiring back up again. but it takes two years to get inspectors to the training

programs. so just about the time that they were getting the ranks back up to a level that they were able to start management, the problem is they have a lot of inexperience. we have six district managers and there were records that didn't get handled and at the time of the explosion management at the field offices and during the time of the last couple of inspections at ubb. a lot of this stuff caught up with the agency. specialists were just wiped out to a core where they were unable to keep up with the specialty work. they found that there were two ventilation specialists. this was a district that had over 50 massey mines. but ramped up to about six

again. no question there is an experience problem. no question that the experience losses had to do with both the budget constraints and the agency that left it where it was at. >> miss woolsey? >> federal district court judge sam recently noted at a hearing during the sentencing of murray engineering for mine act violations at the canyon mine disdisaster, this is going to get me to a question i'm going to that. and during the criminal statute

in and i have a copy of that and i'd ask unanimous consent to insert it in the script. >> thank you. >> the mine act of a mandatory safety standard, even when miners are injured or killed, so theats true even when making a felony only. so would it make a difference, why would it make a difference if instead of these weak minuscule criminal statutes we had had stronger felonies, whatever you call them, if you

treated these endangered miners that were hurt and mandatory safety violations were treated as a felony instead of a misdemeanor. sorry. >> i believe the judge expressed his frustration of his inability to take tougher action where he believed, from what i read, tougher action was needed because of the constraints of the mine act. it's pretty straightforward. the u.s. attorney's office expressed similar concerns of what they believe their limitations are to bring forward other actions. i think it's a classic case that you have to step back and look at to determine whether or not there is sufficient tools under the mine act to deal with circumstances like that. i'll just point back to some of the things that we're still finding through some of the impact inspections. if anybody thought that the advance notice of inspection was a piece of history, we're living

in a different world. that's something we constantly find. there is conduct ongoing that it doesn't seem that there's enough to turn under the mine act to prevent that from happening. >> thank you for answering my convoluted question in a way we could understand what i was asking. thank you very much. the internal review found that it should have been investigated for willfully violating safety laws. why weren't these cases investigated and is m. shaw c conducting those investigations now? >> i think there are three answers to why weren't they. in addition to ventilation and staff, staff that was cut and i think if you look at our

testimony there is another problem that was raised in the internal review which is around 2006, i believe it was, they were only able to carry out about 83% of its responsibilities. they were shifting people over just to do targeted inspections at mines they couldn't get to. they were pulling off ventilation specialists, special investigators, and others to try to keep the mandatory inspection program up because they were so short staffed and couldn't keep up. >> with that in mind, do you agree with niosh, their independent panel recommendation, to conduct four complete inspections each year at underground mines as a way to reprioritize resources? would that help? >> all of those cases were shifted off to the u.s. attorney's office that were

identified. so those were processed. i went to work back in the 1960s and the first time the federal inspector showed up a the the mine, it was a game changer and i can tell you from my own personal experience that the mandatory inspection has saved more miners lives than probably any single thing. if you look at 178 -- 278 miners dying on the job in 1977 when that act was passed, we're down to -- and we hope to even get to zero. but we're in the high 30s to around 40 today and that had a lot to do with protecting the miners. it's taking two brakes off of a car because we don't have as many car wrecks now. this is a fundamental

protection. >> the gentle lady's time has expired. >> thank you, mr. chairman. thank you mr. main for being here today. we appreciate you for taking the opportunity to answer our questions and i have a few questions about the inspector's work, especially about the days and the hours that they work, especially on weekends. and unfortunately, i press faced my set of questions by the last five weekends, there has been a miner that died, including friday night in my home state of alabama. and now that the intern small internal review at irregular intervals and none of the inspections occurred on a saturday and the internal review also found, and i quote, inspectors were contractually to begin their work week no later

than tuesday which, quote, limited the opportunities for inspecting on fridays and saturdays. so if i understand this correctly, does this mean that there were no inspections on sundays and, you know, is this issue of not having or infrequent inspections widespread? >> i think to answer the question, was there anything on sunday's, you may be correct and one of them, i directed my staff and do a better targeting of the problem mines that are out there. and approach these problems differently. if you look at the impact inspections and we do every month, a lot of those are done on off shifts when they are expecting then to show up and capturing the phones to prevent the mine operators from changing the conditions underground to

prevent. so that's a tactic that we're using more readily now. the agencies have shifted their personnel to address that and you're right about the past five weekends and are we so much now on the weekends, we're shifting some of the activity to a time they still don't think we're going to show up? i don't know. but in three of those, i believe, they were four men that died in the weekend deaths. we put an alert out this past week and the short answer is we have changed the way we've done business and we really need to be at more often and at times when they least engs pexpect us there. there are probably going to be more weekendns