entire system failed the miners set up for big branch. past congresses should have slashed funding for mine inspector. msha needed to do a bet are job with the tool it had and massey exploited msha's weaknesses and those in the law and hurt their workers. the law should have been much stronger, because that is what it takes when an operator has little or no regard for their workers. we are prepared to work with our colleagues to enact meaningful reform so that we can honor mr. longal plea and the lives of our country's miners, because, mr. chairman, the blood spilled by these miners must not be in vain, and it must not be forgotten, and we must protect all miners from the errors that led to the ubb disaster. mr. chairman, in closing, i want to welcome our witnesses that will be here today, and joe

main. as well as the others who have a lot invested and are getting this right. i yield back. >> thank you, gentle lady. all can submit written statements to be included in the record. the hearing record remains open 14 days to allow statements, questions to the record and other material reference the during the hearing, submitted in the official record. let me add my welcome today to our colleagues from west virginia. mrs. capado and mr. rayhall. without objection, able to participate in our 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. he is a panel of one. assistant secretary of labor for the mine safetiy and health administration, joe main.

mr. main has been a coal miner and mine safetiy advocate over 40 years. he worked for the united mine workers of america in various positions from 1974 it 2002 including 22 years as the administrator of umwa's occupational health and safety department. prior to his nomination he worked as a mine safetiy consultant. welcome back, mr. main. before i recognize you for your testimony, let me remind you of our quaint but nevertheless important lighting system there. it's a green, yellow, red, self-evident. we want to hear what you have to say. all of your testimony will be included in the record. you're free to summarize as you wish. when we get into questions, i will be asking my colleagues to stick to the five-minute rule so that we can all have a chance to engage in the discussion and have time for the second panel. and with that, sir, you're recognized.

>> i think it's on now. thank you, chairman kline, and ranking member woolsey. i appreciate the opportunity to report on the april 5, 2010 disaster in the upper branch mine that caused the death of 29 miners. actions thins sen, findings and before the explosion and why this efforts to use all tools legislation is still needed to fully protect the nations miners. the tragedy when occurred a few months following my confirmation was the deadliest cool mine disaster in 40 years. caused unimaginable grief for the families and loved ones of miners and extends well i think, beyond that. they all should, they all want assurance an explosion like this never happens again and that we're doing all we can to keep miners safe. our inquiries have been the most inquires of conducted. we held numerous meetings with the family as well as

congressional and public meetings. the investigation team issued a final report finding it started with a methane ignition, fueled by coal dust trinsed ed ttrans into a massive explosion. violations of basic safety disregarded at upper big branch. also the unlawful practices implemented by massey at the root of the tragedy, such as advanced notice inspections, intimidation of miners and concealing hazards from regulators. while most massey top management at ubb exercised their fifth amountmond rights one official recently validated our investigation's findings. gary may, a superintendent at the time of the explosion recently testified it was standard practice at ubb to warn employee. s underground of inspections and fix or conceal hazards before inspectors could observe them. he also stated when he was a section boss he would always spread extra rock dust to make

everything look good and when told inspectors were on the way. the massey operation was issued 369 violations totals $10.8 million in penalty. the international resources which acquired massey after the explosion did not contest these violations and paid the penalties in full. msha conducted internal review and released this report march 6th which found despite mf hsia district foreaggressive enforcement efforts among the toughest in the nation, a number of dishessies at ubb including failure to identify non-compliance with rock dust standards and significant shortcomings in the venation and risk control plans. the internal review also identified deficiencies in policies and procedures including those cited by previous internal reviews. the internal review concluded these deficiencies were result of budget constraints and attrition of experienced staff leaving district 4 and elsewhere short staffed and with serious

experience deficits. this was particularly true with a roof control ventilation and other specialists. the internal review team acknowledged the fact that we should not lose sight of. enforcement of ubb created by an operator that intentionally evaded the law and interfered with efforts to enforce it. internal review confirmed the accident investigation team's findings that massey, not msha enforcement caused the explosion. we have reviewed the internal review finding and implement add number of recommendations including reforms begun before ubb. we know more needs to be done. also reviewing conclusions and additional ideas of the niosh independent panel. ubb has worked harder to use every tool at its disposal ensures operators a safe and healthful place for miners. we believe our efforts are making a difference. the most effective enforcement tools from the impact inspection which began immediately after the disaster.

in 2010 we've kuked more than 400 impact inspections arriving at mines at off hours, prevents unscrupulous operators from giving advance notice and strengthened pattern of violations process to make it as effective as we can under the current regulations. for the first time in history msha placed two mines on pattern violations and seen improvements subject to the pov process. despite efforts, the current system is still flawed. our proposed rule we've announced would address these and make it less effective on what congress intended for it to be. msha beefed up enforcement of critical health and safety requirements, taken regulatory action to improve compliance, required mandatory two-week biannual training of you all field officers, split district 4 into two coal districts. reorganized office of assessments to centralize

oversight of accountable and enforcement actions and increased measures to educate miners protecting them from discrimination. a majority try to obey the law. there are still some who flunk the law. administrative and regulatory reforms we're implementing are not enough. prior congressional hearings have made clear, we do need legislative reform trying to out-fox operators for focused improvement of the mine act. congress should address certification processes and work to strengthen the criminal provisions of the mine act. we cannot tolerate employer whose are knowingly risking the lives of workers by cutting corners on safety or providing advanced notice of inspections. congress should provide msha

with sufficient to act quickly when it affect miners health. legislation must ensure they are fully protected from retaliation. this committee learned during a field hearing in the upper big branch disaster, miners were often afraid to speak out, because they feared losing their jobs. i look forward to working with the committee to find the best way to accomplish our shared goal of providing other nations minersened safety and health protections they deserve, an thank you mr. chairman. >> thank you, mr. secretary. you mentioned in your testimony and every investigation and in 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're here today representing msha. the agency that is tasked with

ensuring the safety in our nation's mines, and that included, of course, safety at the upper big branch. so i would like to quote again from niosh's independent review where they said, if msha had engaged in timely enforcement of the mine act, and applicable stands and regulation, it could 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 the investigative planning thus far and i believe even the niosh report pointed this out, that the -- that massey caused this disaster. having said that, i can't say for certainty that could or could not have been preventible. i think the, you know, we look at all the facts on the table, but what i firmly believe i haven't seen the facts that tell me that, you no know, we could

have taken action knows have stopped that. there's a lot of thing wes should have done differently. a lot of things we could have done differently. it's my firm belief, mr. chairman if an inspector walked into that mine april 5th, found what was going on, they would have shut it down in a heartbeat. i really believe that. >> so the question sort of remains that mf hsia had a number of opportunities. you've seen that in the report. your own investigation, and to see what was going on, even though massey was engaged in violation of the law, but, i mean, this seems pretty clear to me that if msha engaged in timely enforcement of the mine act, and applicable standards and regulation, it would have lessened the chances of and possibly prevented the upper big branch explosion, and --

>> i'm saying that basically what -- i've looked at a lot of the facts in this case and tried to plow through everything developed. i think some of the issues raised that maybe point a -- a closer fix on the question you raised, on the inspections done over the last inspection period. the question is, did msha identify coal dust and they didn't take appropriate action on? if you look at it from that sense. i have found no case where they identified coal dust and did not take action. with regard to the inspections, the four inspections you referred to, actually the four inspections that took place, only one was a regular inspections. the others were in, i think one case, a blitz inspection that took place where a team of inspectors went to the mine for the purpose's addressing a serious ventilation problem. actually issued an order upon

arrival and spent their time dealing with, with the ventilation problem and had the mine down for actually about three days. and i think the other inspection that was involved in the four inspections was wherein an inspector went up through the tailgate, in this entry that was the return off of tailgate 22. isolated from the whole entry as well. a series of facts there that you have to look a little deeper at, but but, you know, in terms of the rock dusting issue let me swing back to that. a chance to read, i didn't have a chance to read the testimony of the superintendent hwho testified before the proceeding three weeks ago, where he -- as superintendent of the mine, used advanced notice to keep msha from knowing what the violations were. even then as a -- whenever msha would come into the mine,

scatter a little rock dust around, and basically to hurry up and make it look like they'd been rock dusting. in the areas where the inspectors were in prior to the explosion, they were up on head gate 22, which was the development section on the -- on the northern side of the mine. this is where the explosion forces was the worst in that mine that we found. the fuel loading was the heaviest. on march 15th, inspector went into that section, did their inspection, sampled the rock dust. that rock dust went to the lab. and what the lab found when this came out post-explosion, what the lab found was, at that time, that section was basically in clines. all the samples in compliance with one which was fairly close. between the 15th of march and april 5th, something happened. and the inspectors of course, we know was not back into that area. if you look at the company the record books during that period, it appears there was a lot of

coal dust and combustible material floating you. look at the belt entry, for the long haul, the area which the explosion traveled through, inspectors went into that area on march the 15th, conducted an inspection, issued an order on the, i think the tail drive of the belt and had a citation on the entire belt itself. the whole belt. they went back in i believe on the 24th of march to make their last inspection. which they required the company to clean it up and rock dust that belt. that was terminated based on the inspection on the 24th, i believe, of march. that was the last time an inspector was in that area. and if you look at the company record books of the float coal dust and the -- the coal spillage that was occurring from the day of the explosion back, you're going to find there's a heavy listing of conditions. >> my time is expired. i know i have all of my colleagues eager to engage in this conversation.

so i'm sure we'll continue to pull this out. it's unfortunate, apparently it depends on which set of the company's books you were looking at. the ones they cooked or the real books. mr. miller? >> thank you very much. my apologies for being late to the hearing. i want to thank ms. woolsey for finding the opening statement and sitting in the claire for that moment. mr. main, thank very much for your leadership at msha and thank you for your leadership in response to this tragedy, and in rebuilding the resources at msha so we don't have to go through this again, hopefully of again. i want to read, you mentioned, read from his court distribute, mr. gary mae, a back and forth with the u.s. attorney's office, and the question is, mr. mae, while you were at upper big

branch mine was there a practice of providing when inspector were comes to the mine? answer, yes. question, can you tell us from beginning to end how these warnings were communicated? answer it would start usually someone came through the guard shack. there would be a phone call and it would be announced over the radio, "company on property." from that point it would be received at the office. from the office, call underground, let them know we had "company." skipping forward in this discussion, question, how often at upper big branch mine were warning given to inspectors, that inspectors were coming on the property? answer, a lot. question, most of the time? answer, yes. question, was the upper big branch mine able to avoid citations from msha because of the practice of advanced warning of inspections? answer, yes. question, did you know it was -- if it was illegal to give advance notice of a mine inspection? yes, i knew it was unlawful.

question, did the superiors know about this practice of giving advance notice to inspectors? yes, yes. did they encourage it? answer, they did. when asked whether he would spread rock dust when he was warned inspectors were coming, mr. mae answered, i always spread extra rock dust if i knew someone was coming to make everything look good. unquote. how do you conduct inspections in that kind of atmosphere? >> it's almost impossible to be able to enforce the law in this kind of activities are in place. >> did -- does your -- your report corroborate with what mr. mae said? that this happened most of the time, all of the time, on -- >> i have to -- >> on the property? >> i have to give our inspectors credit. despite that plan, a year before this explosion, they issued closure orders for anybody in

the united states. i think that showed the fact that we had some pretty aggressive inspector, but there's a lot we didn't know. a lot they did hide, i believe. >> in this case, the discussion is really about a -- a calculated interference? this was a matter of company policy, apparently, that if inspectors were on the property, efforts were made to -- to move them either to other parts of the operation or 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 hid a lot of stuff from regulators, yes. >> now, in the -- in the -- in the niosh report, it's pretty clear that there were procedures that -- that just didn't fall in place in terms of looking at some of the reports that were filed by inspectors and taking actions on those reports. is that correct? >> i'm sorry. i think -- >> in the, the criticisms of the

agency, the suggestion has been that some reports were made and action wasn't taken. they were -- there were sort of left on the shelf, if you left shelf from an extended period of time. >> there's no question that there are things we could have done better at upper big branch. >> go ahead. >> but i think at the same token, but the agency was up against that was well articulated by the superintendent mae was a challenge beyond the capability of any inspector, even an experienced inspector to catch up with. >> in your internal review you say however, did not collect dust samples in the long haul gate entries at ubb after the long wall began production nor does the procedures directly proceed them to do so. was the guidance wrong. >> there's a guidance issue.

there was a serious problem with the policies of the agency. there was a direct assistant in place up to 2002. it was dismantled. after that every programmer was on their own to develop policies and implement those in what the internal review team found was 199 policies generated from 2004 forward. and he may or may not known about those. one of them dealt with rock dusting. different inspectors had different instructions on how to do mine dusting sampling in the mine. >> thank you, ladies and gentlemen. >> thank you, mr. chairman. >> mr. main, one of the conditions that led to the catastrophic explosion at ubb was the accumulation of coal dust. in fact, the investigation report contained pictures of belts that had been rolling

through coal dust. as miss wol see eluded to, how can they attribute the this existence to restrains? >> i'm looking at two pieces, one is the conditions that are directly involved in the explosion itself. if you start with that and look at the area where the explosion occurred and where the fuel was at to cause that explosion, was there something we missed to cause that explosion. in that area, i didn't see any evidence from any of the reports that i found that noptors have walked by an area and did not take appropriate enforcement action. we're pointing out where they

did inspect and did find in the critical area. one area that's important i ask myself is how did we have such an explosion right off the tailgate. there was no evidence the company had any real methodology in their posting explosion investigation of continued rock dusting that area. what we found are inspections happened over a three-day period. march 9th through 11th. we had ventilation specialists. we had a supervisor and training in that area and an inspector in that area. that was an area that went to where they issued an order to close down the mine because of the ventilation problem. and that was an area -- when the inspector showed up to do this last inspection, here comes a gang of six inspectors into the pashlt of the massey energy upper big branch mine. i think the world that was

yesterday was hailstorm whenever more than one inspector showed up. it took an hour and a half for those inspectors to get to that spot. just before they got to that location at 9:48 a.m. the company shut down the sheer and claimed that they had a problem. this is according to their records. the inspectors arrived. after they showed up if mr. mae's instructions were correct in the area that we're talking about where the rock dusting would have been visible out at the tailgate is not a large area. the question everybody has to ask was did those inspectors spend three days and see totally black stuff they didn't do anything with or was there something done ahead of them. that's what's bothered me all the way through is how these inspectors could have missed that coal dust unless it wasn't

there to be seen. i don't know. when we get to the bottom of what happened here. >> let's talk about the internal review where they reportedly cite inspector inexperience in the district four as the cause of the deficient inspections at ubb. it sounds like you're saying regardless experienced or inexperienced inspectors this probably would have been missed. yet if they were there on the day of the explosion, they would have caught it. >> some of the conditions were bothersome that were identified. in terms of the conditions that existed. the $64 question is, did that company did something the day that the last inspection was made that masked what they were doing. >> i'm trying to the kous on the inspector inexperience. do you agree that the inspectors were inexperienced? yes or no? >> absolutely. >> when do you think the inspectors would be adequately trained reasoned are they ready now? >> let me talk about that.

this was not something that just happened overnight. if you look at both of the reports, and the niosh report pointed this out as well, there was a severe staffing problem that was created starting back in 2001 back when there was a flat line budgeting that caused the agency to have to eat itself so to speak by cutting back on ftes just to be able to stay at a funding level. in 2004 there was a budget cut that further reduced the staff. at the same time you saw a major retirement take place. it was pretty overwhelming when you look at the numbers. between 2001 and 20061,000 people left the agency. it had about 2300 folks. there was 690 out of 1100 that left the coal enforcement ranks. you had an agency that was devastated. congress made a wise decision in 2006 and added new funding which wasn't realized until twhechb

when it's able to start hiring back up again. but it takes two years to get the inspectors through the training programs. just about the time ub was hitting, the ranks were getting back up to the level that they were able to start managing it. the problem is they had a lot of inexperience. if you look at the same period managers were leaving. we had six different district managers running district four from 2003 to 2006. that was a time when ventilation records didn't get handled. you had at the time of the explosion management of the field offices that was changing out. there were three different managers, three field office managers two of them acting at the time at the last couple of inspections at ubb. all this stuff caught one the agency. specialists was just wiped out to a core where they were unable to keep up the specialty woork. i knew at the first part of the review process, the team found

that there was two ventilation specialists in the whole district this is a district with over 50 massey mines. got ramped up to six specialsts by the end. there's no question that was an experience problem. there's no question the losses had to do with the budget constraints and the agency that left it where it's at. >> the gentleman's time has expired. >> thank you, mr. chairman. federal district judge david sam noted recently at a court hearing where the during the sentencing of murray engineering for two violation connected to the crandall canyon mine disaster. this is going to get me to a question that's why i'm going to that. he said, and i quote him, he said i'm outraged because of the minuscule amount provided by the

criminal statute in the sanctions and the finding these criminals from the crandall canyon. so mr. chairman, i have a copy of that. i'd like to ask unanimous consent to insert it in the transcript. >> without objection. >> thank you. so the minac classifies a willful violation of mandatory safety standard as a misdemeanor even when miners are injured or killed. so that's true when making a falls statement and that's a felony. why would it make a difference instead of weak mine skul criminal statutes we had -- we had