on that? i mean, it probably doesn't come to the secretary's office. where does that -- say you have an inspector, they're in the might be, they say this is a problem, it goes -- run me through the track. and where the buck stops. >> there's -- there's over 14,000 mines we inspect on the coal site, sometimes things are slow getting to the top. but if you look at the administrative process, the inspector does the action at the mine, it goes to fill off a supervisor who does a review. he goes up to a higher level supervisor, up to administrative -- >> can i answer -- >> sure. yrchlts does it go to a higher level supervisor? i mean, we've -- it seems to me that that may be part of the issue, is that if you go -- the more people -- it's like playing telephone when you're a kid. the more people you have in the system, it's going to -- it's going to leave more places where the ball can be dropped.

i am sorry to interrupt, but you got up to another level supervisor. >> but i think there's different -- we have a health wing and the districts. they're responsible for oversight of the health issues. and you have -- an inspector who as part of their job of inspecting deals with the occupational health issues. that inspector has to report to the field officers, we brought in and trained them all. but also to review the health things to make sure we're doing our job, there is a health supervisor that takes a look at the health related things, which i think is a critical part of our operation. somehow there was a breakdown that that did not get taken care of the way it should. and that's something we're taking a strong look about how we revamp -- not only the supervision of our field offices, but our whole able see, to make sure we are fixing those kind of problems. but, yeah, it was something, i agree, that was a problem. >> yeah, and my point, i guess was, 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. and it seems -- it seems to me that, you know, the more bureaucratic your system, the more chance where you're going to have to drop the ball. i also want to ask, nyosh also found that msha essentially has repeated the same failures and short comings in each of the recent disasters. my question -- and i know you've taken a lot of action, and i appreciate that. but i really need to know what msha, you know -- what -- what ultimately is going to stop us from not learning from our mistakes, and what's going to infection this problem? i mean, if you were to identify a few things that you would need to ultimately fix this issue, what would -- what would that be? i mean, we can't continue to do the same things over and over

again, and every time have congressional hearings and say here's where our mistakes were if we haven't fixed it. >> and i agree with that. i think that's the reason we've said -- we're going back and just rewriting the entire policy manual to clean up some of the lack of clarity, the cross-directions, the lack of direction. and also to make clear the things we found in these internal reviews and audits are clearly state in those policies, and that what we do is have a check system that is effective in checking those. i think what happened in the past, you would have an accident, you have an internal review, you would have a bunch of policies, keep piling on to the point where the wheel is broken on the wagon. and i think that's a core of trying to fix -- that's a starting point, fix the problem, go back and rebuild the wagon. >> so you know, the internal review is good, but that's after it's happened. so what -- you know, pro act --

there's two ways to manage things, either proactively or reactively. and it seems like msha continues to manage things in a reactive fashion rather than a proactive fashion. >> the gentleman's time has expired. ms. capito. thank you. i would like to thank the chairman for letting me participate in the hearing today. good afternoon -- or good morning, still, mr. man. thank you for your service to our country and our state and to the beloved miners that i know you care about quite a bit for. i would also like to thank the committee for coming to beckley. i think that was a really enlightening hearing we had there it. there's no question the mine operator put production above safety every single day. resulting in a huge tragedy at ubb. but if we go back to 2006, we had a huge tragedy in my district, mr. rahol, unfortunately ubb is in his

district, sago is in my district. we lost a lot of miners there. that's what this chart is about. because the resources are you said in terms of the number of inspectors that were hired most sago, correct? i mean, that was the reason the more resources were put in. >> correct. >> but you and i attended -- help me with my memory, we attended a reception at the charleston civic center, i think at the end of 2009, where we were celebrating that that had been the safest year, is that correct? was it 2009? >> 2009, yes. it was the safety year in the entire mining industry. >> and then three-and-a-half months later the most devastating tragedy in 40 years. i remember at that time you talked a lot about vehicle accidents and most of the lives lost were carelessness with operating the vehicles. i wouldn't say that taking your eye off the ball, but have you reshifted -- obviously, you've reshifted your resources, i would think, towards the life threatening massive kinds of things that could occur in a

mine and did occur in that tragic day. what have you done since then to reprioritize since that meeting we had in 2009? >> well, i think there was things we were working on at the time that we had a chance to get on track. one of them is a program we don't talk much, but rules to live by. i'm a firm bloeeliever that we really have to stay focused on the things most apt to take a miner's life. and the rules to live by that i kicked off in january of 2010 was aimed at targeting in as we do on inspections and to educate the mining industry on the most common causes of mining deaths. we just launched version three, which dug a little bit deeper into the causes, fatalities and two deals with the catastrophic. so we are paying attention as an industry to those. and the last gentleman that raised a question, we do need to do things differently, and some of the things we started off right at the time we were

speaking, as well as the thing that worried me when i took this job, most of all, when i saw 55% of my inspectors had two years or less growing up in this mining industry, it was something that got my attention. and one of the places i thought we needed to start the quickest is to get a control over the management of our whole system was to bring in all of our field office supervisors, retrain them, make sure they knew how to manage the program, make sure they knew what they need to focus on, and make sure that they understood some of the deficiencies of these past audits and reviews it found. unfortunately, we were just starting that at the time of ubb. but things like that that i think are critical, and in taking a look back at -- a better targeting, finding out who the bad actors are in this industry. >> right. don't mean to interrupt you, but only five minutes. i just want to give you a chance to clarify this. it showed that there was a complete -- excuse me, a computer glitch that prevented

this mine from going into computer generation, which is a category of which closure would be more readily available as an enforcement mechanism. i'm going to give you a chance to say, have you fixed this computer glitch? >> it got fixed pretty quick. we found it, we fixed it, and spent quality time with the inspector general's office, quite frankly, with a lot of help from them to have them go through and see if we had anything else that was a problem. this was a program that unfortunately went into effect in '77, this program was put in effect in 2007. and the folks who were putting the data in failed to -- i guess put in certain data of a certain category. but that was fixed. >> let me say finally in terms of inexperience of inspectors, we can't fast forward the clock. we've got to make sure the training and experience they get now ensures the miners that are right there now that they're not going to overlook or oversee.

these two reports have shown that there were some lack of enforcement or lack of knowledge or too much complexity as to what the actual mine inspector was actually asking to do. but i want to be assured when i leave this hearing today the inspectors there now, regardless of the years of experience, do have this depth of experience they need to have. my time is up. >> the gentle lady's time is expired. i want to thank the secretary for being here today. your patience and answers are very helpful. mr. holt. >> thank you, mr. chairman. >> you're recognized. >> thank you, very much, secretary mane. it seems to me the key question we come back to is whether -- whether there are teeth.

whether the sanctions are so minor that -- i mean, m-i-n-o-r, that the poor performers have very little incentive to clean up their acts. what -- forgive me if i'm retreading ground that you've already been over. but it seems to me it's the key question. what do we need to do legislatively to strengthen the sanctions? >> i think i've talked about a number of this today. i think they're contained in legislation that was already before this body. and it deals with things i think are very fundamental. one is, you know, giving miners better protection for them to be able to speak out. i believe that those mine operators are flooding -- getting the best, and actions to

curb things like advance notice that some still don't get it. that we need to deal with. >> the state of west virginia has done that, i guess. but this needs to be done at a federal level. i believe. is that -- >> i think there's -- yeah, there's more tools we need to effectively do our job, yes. >> okay. well, i want to thank you for your work. some might ask why would a representative from new jersey be involved in this. and as i think you know, i grew up around miners. i really respect the work they do. and it is really criminal the way they have been treated. so i want the to make sure that those who engage in criminal behavior are treated like criminals. and we have to make sure that the sanctions are real. and felt. so i thank you very much for your work. >> would the gentleman yield? >> i would be happy to yield. >> thank you. joe, you're about ready to leave

here. could you succinctly tell us what legislation we have to pass to make a difference to the miners? because we can't just clear up bureaucracy because we're going to be right back where we started, because the bad actors are not going to change. what's missing in this picture? >> well, i want to start with one of the things that we've said. there's a lot of things we can do better, and we need to and we are. >> i'm talking about us. >> yeah, but i'm just working up the ladder to the point that there's a lot of things we're undertaking to fix. we're looking at a regulatory improvements out of upper big branch. even with those, at the end of the day, there's still those things that are left that we do not think that we have either the current tolls to fix. and that is to give miners a better voice. that is to have a law that has respect where the criminal sanctions are one that really

deters bad behavior, that gets the bad folks acting like the good folks out there. ways that we can get information and ways to make sure that we're fully effective and forcing the law. so how important is subpoena power? >> i would just say that in west virginia, if it hadn't been for -- at ubb, we would not have been able to even ask in a legal way or demand in a legal way people answer questions. we don't -- >> do we make that possible for you, for msha? >> that was in the past legislation. it's something we supported then and i don't think anything that is changed. >> would the gentle woman yield? >> yes. >> i would be happy to yield to my friend. >> for both investigations and inspections? subpoena power? >> you have to get the facts regardless of what the issue is, whether it's an investigation or an accident.

because if you don't get the questions, that could be a problem in an investigation. you may not prevent an accident that you want to investigate later. so yes. >> thank you, mr. secretary. thank you, mr. chairman. >> thank the gentlemen. now, mr. secretary, thank you very much for being with us today. we appreciate your patience. we will -- i will ask the secretary panel to come forward now, please. >> thank you, mr. chairman.

this is our second distinguished panel of witnesses. mr. howard shapiro is counsel to the inspector general at the department of labor. mr. cecil roberts is president of the united mine workers of america. and dr. jeffrey colder is director in the office of mine and safety health research with the national institute for occupational safety and health. before i recognize each of you for your testimony, i'll just remind you of the lights. i know all of you have been here. we've got a green light, yellow light and red light. green light will indicate that you have five minutes. the yellow light, you have one minute. and the red light, we would ask you to wrap-up your testimony. your entire written testimony will be included in the record. so you can summarize, if you

would like. with that, we'll start with mr. shapiro. you're recognized, sir. >> thank you, mr. chairman. i will summarize my written statement that has already been provided. >> microphone. >> is it on now? okay. thank you, mr. chairman. thank you for inviting me to testify this morning. with respect to the oig report on allegations of retaliation and intimidation related to the ubb accident investigation. in march of 2011, we received the complaint from the you wanted mine workers of america alleging that attorneys for performance coal and the attorneys for msha were holding private meetings to discuss important issues and that they were inappropriately making deals, which in some cases resulted in vacating safety citations and orders. subsequently, in april we received a complaint from an

attorney for performance coal, representing performance coal, alleging misconduct by norman page, heading up the ubb accident investigation for msha. what the oig decided to do was to address both of these complaints by looking at five separate incidents that were cited in the performance coal complaint, one of which was also referenced in the umwa complaint. the first incident involved msha's issuance of a safety order and citation to dr. christopher shemel, who is one of performance's expert consultants. and the order and citation would have required him to withdraw from the mine until he received 40 hours of new miner training. what we found was that mr. page was tnot the impetus for this action and he was only marginally involved in it. the second incident involved another order and citation, in this case, issued to another

consultant, dr. pedro resca. and this order and citation required -- would have required mr. resca or dr. resca to withdraw from the mine until such time as he could receive some refresher safety training. in this case, performance coal alleged that the order and citation were issued in retal for a complaint which they, performance coal, had filed, regarding an incident which took place in the mine and involved dr. resca. again, in this case, we found that the citation and order were not issued as a result of any retaliation by mr. page or anybody in msha. it was issued as a result of the personal observations of several msha inspectors regarding dr. resca's conduct and behavior in the mine. and i would note that this was the order and citation that was also cited by the umwa in their complaint to us, all be it from

a very different perspective. the third incident involved a meeting between dr. -- between mr. page and dr. shemel to discuss the resca citation and order, and that took place because dr. resca was a subcontractor for dr. shemel. during this meeting, mr. page allegedly threatened dr. shemel with further citations and is orders, and other negative effects on his company if he did not accept the citation issue with respect to dr. resca. we found that mr. page did not intend to retaliate against performance coal or dr. shemel during this meeting. the fourth incident involved msha's scheduling of an inspection of the mine rescue station that serviced the ubb mine. we found that the decision to schedule the inspection by two district 6 inspectors who were unaware that a recent inspection of the rescue station had

already been done by district 4 when they learned of this recent inspection, they cancelled the inspection that they were going to do. so, again, we found no evidence of retaliation. and the fifth incident involved msha's issuance of another order banning another employee of another consultant from entering the mine until he received new miner training. and, again, we found that mr. page was not involved in the decision to issue the order and citation in this case. so in summary, mr. chairman, we -- our review of these five incidents did not substantiate the allegation that mr. page engaged in any sort of pattern of intimdation or retaliation, and nor did we find that msha as an entity engauged in such a pattern, at mr. page's behest or otherwise. however, during our review, we did identify three questionable management actions. one of these was that the

ultimate decision made by officials from msha and the office of the solicitor to vacate the citation and order related to dr. resca was made not based on the safety merits, but was -- rather was made to avoid an appearance of retaliation and to avoid possible congressional scrutiny. in response to our report, the department generally agreed with our findings and stated that msha decided to vacate the citation and order related to dr. resca on the condition that he receive additional safety training, which he did. so in conclusion, mr. chairman, i would reiterate our primary objective was to review the allegations against mr. page. we did not substantiate those allegations, and i would certainly be pleased to answer any questions that you may have or any other members of the committee. >> thank you, mr. shapiro. mr. roberts. >> thank you very much, mr. chairman. and ranking member miller for

calling this hearing. i want to thank all of the panel members who have participated in this. and thank you so much on behalf of the coal miners of the united states for congress's concern about the health and safety of coal miners in the united states. i want to also very much thank you for remembering the families and the lost miners. many of these people were my friends. i grew up with some of these people who lost their lives. and if i don't know the miners themselves, i knew someone in their families. this morning i would like to remember in particular the davis family. linda davis and charles davis lost a son, and two grandsons in this tragedy. the past two years have been very difficult for that family, and unfortunately, on friday, the funeral of linda davis took

place. and i wanted to say to you she was a wonderful lady. one of the things that i would recommend people have been asking what can we do, one of the first things i would suggest that should be bipartisan here is that these families get treated better. when these tragedies occur. a miner working at a nonunion mine or for that matter a union mine, can designate someone to represent them in the investigation. that happened at upper big branch where two miners had did he say nighted the united mine workers to represent them. so we have we were a representative. the families do not enjoy that right. and i have to tell you that that's something that is discussed very much throughout the coal fields and how tragic that is, that the people who have suffered the most can't have someone representing them when these hearings are ongoing

and when the investigation itself is ongoing. i don't think anyone standing in front of me believes that's correct. so one of the easy things that i believe that we can do here is correct that situation. we have to have three things. an order for something like upper big branch not to occur again. number one, we have to have an operator who is willing to follow the law. first obligation here is for the industry to protect these coal miners. number two, we have to have an agency which fully enforces the law. and three, we have to have workers who are empowered to speak out for themselves. i want to report to you today that none of these three ingredients existed at upper big branch. we would know, and we have heard testimony repeatedly here, that we had an operator who was rechemicals transit and who was dick at that to recall.

it wasn't just the upper big branch mine. all of these mines operated by massey industry or energy, you could find similar situations. and, in fact, msha has found those same kinds of situations existing, the same dangerous conditions existing, before massey turned these operations over or sold them to alpha natural resources. and i wanted to remind you of the famous -- infamous memo sent out in october of 2005 by don blankenship, sent to all deep mine superintendents, entitled running coal. this is from the man. this is from the top person, this company, and he believed and the minors believed and most people in west virginia believed that he was above the law, he was above the governor, he was above this congress right here. so that you will know, that's how he was perceived in the southern west virginia. if any of you have been asked by

your group president, supervisors, engineers or anyone else to do anything, anything, other than run coal, such as build overcast, which happens to take ventilation to the working sections, do construction jobs, or whatever, you need to ignore them and run coal. this memo is necessary only because we seem not to understand that coal pays the bills. we have consistently said that people like don blankship, and i have called for him to be led away in chains and locked up in jail, because that's where he deserves to be. because if any one person is responsible for what happened in upper big branch, it's don blankenship. number two, what we need to do is clarify the authority of msha. we have repeatedly said, why didn't msha close this mine down? well, let's clarify that

authority. if we believed that that's what they should do when they find circumstances like they found, let's clarify that authority and say you do have it. and 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 who may choose to operate like don blankenship did, that you, the congress of the united states, republican and democrat alike, will stand behind the enforcement agency of the united states and see that we do not see these conditions again. number three, workers need to be empow empowered. and if you can can do one thing before you leave this 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 that some form and somewhere is telling a miner to go under unsupported top, telling a miner

to do something that's going to get him hurt, going to get him killed, and that should be a feel knee. that coal miner should be able to say, i am not doing that. i'm exercising the rights that congress gave me, and if you continue to tell me to do something dangerously, you're going to jail. they don't have that ability today as we speak. because they know they'll be fired and they won't have a job, and they won't find another job. thank you, and i would be glad to answer any questions that you have. >> thank you, sir. dr. colder. >> good afternoon, mr. chairman, ranking member, other members of the committee. my name is jeffrey color, associate director for mining at the national institute for occupational safety and health and the director of the office of mine, safety and health research. i'm pleased to be here today to provide a brief update on our activities related to the miner act and to speak to you about the work of an independent panel that assessed the process and outcomes of the mine safety and

health administration's internal review of the ubb mine disaster. we continue to work with our partners and labor industry in government to develop and implement practical solutions to mining safety and health problems. our primary focus remains on prevention, and towards that end, we have implemented interventions to reduce res perable dust, to revent roof falls and coal dust ex explosions, among others. for example, the coal dust sploesability meter became available this past june. our work has led to the commercialization and in-mine use of communications and medium frequency systems, such as the cut of medium frequency system and the lockheed martin system for post accident functionality. despite all of the progress, the explosion at ubb serveses as a poignant reminder that more remains to be done. following that disaster, the secretary of labor requested the director of