panel of experts who would be inspect of msha and dol to assess the processes and outcomes. i was appointed to the panel, and i speak to you next about my role as a panel member. the panel's report was not reviewed or cleared by niosh, cdc or hhs prior to its release. all mine operators must take a proactive role to ensure the safety of mine workers. and as the accident investigations have concluded, massey energy's highly noncompliant practices directly caused the explosion at the ubb mine. it is impossible to know how many thousands of deaths have been prevented through msha's enforcement actions. yet in those instances, when the operators' actions caused a disaster, we must understand why, learn from and prevent future occurrences. msha's internal investigation

team was thorough and it disclosed fully every deficiency it found in msha's enforcement performance. a review of msha's internal reviews for other mine disasters also reveals a candid and detailed disclosure of shortcomings in msha's enforcement performance. the same or very similar deficiencies show up in many of these internal reviews. and now, as in previous internal reviews, a detailed set of recommendations has been put forth to fix the identified problems. no doubt, those recommendations will be helpful if implemented. but we do not believe the -- the panel does not believe that only doing more of the same, more training, changes to handbooks or administrative procedures and policies, will fully achieve the desired performance that msha expects. we believe there are underlying problems, which have developed over the years that must be

solved. the report of msha's internal review and the interview transcripts detail a work force of inspectors, specialists and supervisors that is severely overloaded and trying to accomplish a lengthy set of duties that is not fully doable. with the insights that we gained from our assessment, we have developed four overarching recommendations that we believe should be implemented. our first recommendation is for a comprehensive analysis of the current enforcement paradigm to identify and repair any underlying weaknesses. collectively, we cannot continue to do the same thing and expect a different and better outcome. as part of this recommendation, we have suggested several topics that we believe should be included in the comprehensive discussion. work force and work force readiness issues. continuing challenges in the plan approval process.

and better use of information technologies to aden forcement. among others. second, we have recommended a few changes to msha's internal review policy itself to enhance the value of their process. third, we have recommended independent oversight to ensure successful implementation of their recommendations. finally, we have recommended technical investigations to support development of best practices guidelines and to inform statutory or regulatory activities. in particular, improved monitoring, explosion prevention and ventilation practices. in closing, niosh continues to work diligently to protect america's mine workers and our research activities will enable us to better protect mine workers. thank you, mr. chairman, and i would be pleased to answer any questions. >> thank you, dr. color, thanks to all three of you.

dr. color, it looks to me like you've got something next to you on the table there. i would -- from here, the coal dust sploesability meter, i think. is that ready for prime time? >> yes, it is. >> excellent. so you believe it can be used as a compliance tool right now. >> that's correct. >> i just wanted to give the opportunity to raise it up. you brought such a nice device there. and i just hate for it to sit on the table. thank you. thank you very much. again, dr. kohler, west virginia's -- so many investigations here. west virginia's ubb report made a recommendation to niosh to further study barriers. can you explain what those are, describe the previous work in this area and what you need to complete this study? >> yes, active and passive barriers serve as secondary means of quenching an explosion once it has started.

active and passive barriers would offer the opportunity to be placed in certain strategic locations. for example, in certain belt entries. so that if the other mechanisms failed and there were a dust explosion, the barriers would most likely quench those -- that explosion. in order to implement these barriers, there are a few remaining questions, some experiments that need to be done, and as the state of west virginia recommended, there is some additional research that we need to build on the work that we did several years ago. at our lake lynn 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. >> okay. i'm not sure i understand fully 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've been sort of stepping around this all day. niosh's independent review stresses that msha's internal review perhaps -- perhaps failed to address the broader, more important issue. that is, quote, what a more effective enforcement effort by msha have prevented the ubb explosion. looking beyond the specifics of this question for the moment, how do you believe msha could best understand the underlying issues concerning its involvement in upper big branch? >> i think the panel believes that 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 rewriting books and handbooks, but rather trying to probe more deeply into why these things persist in yo vent after event.

>> did niosh provide experts to msha during the accident investigation? >> yes. of the agency provided technical analyses, technical work and advice. >> so they were onsite or not onsite or a mixture? >> not onsite. >> so they were just there to answer questions. >> or to conduct laboratory work at the facility. >> just in keeping with you here dr. kohler, i'm sure we'll get to everybody else here in a moment. we were talking about mining technology a lot, ever since i've been on this committee. we've been talking about communications devices and safe chambers and so forth. one thing that's been discussed is foam rock dusting. can you explain what that is, and is it ready? >> i can't speak specifically to whether or not it is ready.

there is certainly some experimental validation that needs to be done before it could be applied in the mines to meet regulatory requirements. it's a newer process of applying rock dust so that it adheres better to the walls of the coal. without producing res perable dust down wind. it's a new process that is being advocated as an improvement. and i think that pending further study, it may represent an important improvement. >> okay. thank you very much. i see my time is about to expire. mr. miller. >> thank you. mr. kohler, one of your recommendations, i believe, is to reevaluate the requirement quarterly inspections of all mines, is that correct? >> not exactly. no, we are not recommending that. the recommendation was to look more broadly at our current enforcement inspection 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 transcripts and the internal review detail a work force stretched so thin that it's very difficult for them to be successful in their work. >> by successful, you mean effective. >> yes. and so if people -- if the resource is ineffective, then it begs the question, how are we allocating the resources, is it important, should we be doing more or less of it? >> mr. roberts, have you looked at those recommendations? >> yes, i have. >> your opinion? >> some of the recommendations and i'm glad dr. kohler clarified the one on the quarterly inspections. we feel that those 4s and 2s as they're referred to in the industry, are extremely important. some of the other recommendations appeared to be saying, let's give more responsibility to the coopera

cooperateers in mine management and take some of that responsibility away from msha. we would be totally opposed to that. and i think we can just point to pre1969 when that existed and i would remind this panel, if you go back to 40 years preceding of that act, and analysis and what happened who 40 years after, you'll find 30-some miners lost their life before the passage of the mine act and less than 3,000 lost their lives 40 years afterwards. so we have to say that legislation that was passed by congress has saved a lot of lives, and the things that you do here are important. >> but in terms of this relooking at the inspection regime, you don't have a problem with that in a sense i assume what you're trying to determine is what's effective and what isn't effective and what could be changed to make it more effective. because obviously, you know, the record is replete with a series

of inspections where we just end up doing more inspections and finding the violations over and over again. i mean, that's a problem you heard discussed here earlier. where -- what's the next step after that. but are we using the mine inspectors' time in the best interest of creating a safer workplace? >> yes. and now also asking the question, what can we do to change the fact that in internal investigation after internal investigation, we see a similar pattern of deficiencies. >> are mine workers a part of that discussion? >> the most recent recommendations or suggestions by the panel, no. >> what happens to the follow-on to this? is that all internal? >> in terms of a follow-on, we're hoping that someone will constitute a group of people. >> so that hasn't been determined yet. bringing the mine workers and others to discuss. >> we said this body should

include labor industry academia government. >> president roberts, before i run out of time here, we -- 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've been unable to do that. to date. we get into a lot of penalties, we get into a lot of citations, we get into a lot of court actions back and forth. but we don't get rid of the bad actor and the pattern appears to continue until there is a 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 to achieve the goals of everyone up here seems to be interested in achieving. that is, if you have a massey energy and you have someone like don blankenship running a number of mines, they're extremely dangerous, how do you stop that? number one, the penalties -- criminal penalties under the mine act are ridiculously low. we just saw that at crandall

canyon. for $500,000 for two criminal acts is all they had to pay. that's not even a half day's work for production. so the penalties are extremely low. no one is going to pay particular attention to that. i think there needs to be more severe penalties. and i think those penalties have to go up the ladder higher than they do currently. when we put mine foremen in jail, the person who told the mine foreman what to do is still walking around free and clear. so we have to be able to go up the ladder all the way up to the chief executive of the company, if that is who is making these decisions and putting others at risk. >> but that's beyond a misdemeanor. >> absolutely. that's got to be a felony and it's got to be written into the law and it doesn't exist right now. >> thank you. >> the gentleman's time is expired. i recognize myself. mr. shapiro, thanks for being here. your written testimony notes that oig found mr. page, the leader of msha's investigation team, to have used, and i quote,

poor judgment. in dealing with some of massey's 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 that could have been perceived as intimidating? >> well, mr. page, when he discussed this matter with dr. shemel, had brought up the possibility that if the order was not vacated, the order that involved dr. resca, if that order was not vacated, that there was a possibility that complaints would be filed against his company, against dr. shemle, against his company, that these complaints would have to be investigated by msha. that these complaints 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 purportedly from the umwa, and dr. shemel believed that that was a picture of -- it might have been a picture of him. and so all of this was the sort of dialogue that went on that led dr. shemel -- or led us to conclude that dr. shemel could have perceived that he was being intimidated if he did not agree to vacate the safety order that involved dr. resca. as we explained in our report, it appeared that mr. page was trying to legitimately broker a deal, and try to please all the party. the parties here being performance and the umw and

msha, because mr. page was legitimately concerned, and several people told us this, even people with performance, legitimately concerned that the accident investigation would be impeded if msha had to investigate all types of safety complaints, whether they came from umwa or anywhere else. because they statutorily have to investigate all of these complaints. mr. page's primary objective was to complete this investigation, the accident investigation. so that was the scenario in which this -- we concluded that there could have been at least a perception of intimidation by interest shemle. but we did not conclude that that was mr. page's intent in that conversation. >> i guess in light of all that, secondly, can you explain your understanding of why mr. page was in a position where he was having closed-door meetings with massey's representatives, and making comments that could have

been perceived as intimidating? >> well, i'm not sure i can answer for msha -- or for msha to say why he was in that position. what we were told was that an agreement had been reached between the performance attorneys and the msha attorneys, to vacate the order and citation if dr. resca received the training. but mr. page was concerned that if that occurred -- if the order and citation were vacated, that there may be this flurry of complaints that he would have to investigate. that msha would have to investigate. and therefore, impede the investigation and mr. page asked if i could try to sit down with dr. shemle and work this out. and that led to this meeting. he was advised by officials and msha, yes, why don't you see what you can do. >> but it appears that that then indeed could have taken away from mr. page's ability to

conduct the investigation of the explosion. wouldn't you -- would you agree, or wouldn't you? >> i'm sorry. that what could have taken away? >> that it would have taken away. these activities he was involved with took away from mr. page's ability to conduct investigation of the explosion. >> i'm still not sure which activities you're referring to, sir. >> the activities of massey -- being with massey, involved in the closed-door meetings, the intimidation perception that was there. >> frankly, i'm not sure i see how the meeting itself would have taken away from his role as the head of the accident investigation. what he was concerned about was that complaints would be filed, and those complaints, those safety complaints, would have to be investigated, and they would impede the investigation. it wasn't the meeting itself that was the real concern.

>> i appreciate that. i think that's -- i think that's what -- with lack of art, i was trying to get at there. thank you very much. my time is expired. ms. woolsy? >> thank you very much. so mr. roberts, it appears that msha doesn't have the power they need to stop the bad actors. workers -- that doesn't even appear -- it's certain they don't. and workers are unable to work within their company at their job site when they're the ones that know if there's a danger. they -- they can't identify these hazards. they can't do anything about them, without fear of losing their jobs. and congress hasn't, as of this moment, anyway, done anything to change this. will you tell us, from your

perspective, as a representative of these workers, why don't they just walk off the job? >> they >> they walk off the job, congresswoman, they're going to be fired. and in the case -- if you go back to prior to massey selling these operations to alpha, most of the mines in southern and western virginia were massey mines. and so it's not just a matter if you got -- if you were terminated at mine a, you just went down to mine b and got a job. you ran into the same employer at mine b, mine c, mine d, mine e. and you would probably never work in southern west virginia again. you would probably have to leave the area to find the mining industry. it's a more sophisticated form of blackballing. >> right. and one of the -- i think we all

remember when we were at beckley, one of the mothers of one of the miners who had lost his life, she said 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, his -- the oxygen in his blood was so contaminated that he would flop down on the sofa and pass out. and she would say to him, son, why don't you first go to your management. i can't. then why do you keep this job? and he said, mother, there are no other jobs. and this is -- i am risking my life, and i know it for this job. osha would not allow -- doctor, osha would not an employer to retaliate against an employee

who pointed out a hazard in the work site. why do you think the miners have to put up with that? what do we need to do to change that? let me ask you that, i guess. >> i can answer that if you would like. first of all, i think technically, the law supposedly protects minors. but there is a -- there is the law and there is the reality. miners in southern west virginia do not belief or did not believe particularly when don blankenship was running these mines that anybody could protect them. they didn't believe the governor could. they didn't believe this 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 individual this was who he visited these mines.

he flaunted his power and authority. and he was retaliatory. 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 type people. i want to make sure that we're clear on that. most operators don't act like this. but you're going to have those type people from time to time, and you have to protect these miners from them. and you have to write it into law that if people put miners in unsafe conditions, it's jail time. >> so had you been sitting in secretary main's seat, what would you have said we need to do? >> had i been sitting in secretary main's seat -- let me -- we have publicly said that this mine should have been closed. and there has been a debate

about these situations for 30 years now, whether msha really has the authority or not. and we've said that this mine should have been closed. we think there could have been enough paperwork and things maybe going to court or whatever. but as has been pointed out, it's taken a long time. we need to grant whoever the assistant secretary is that authority so we don't have this again. because i don't think it's clear into law that they have this kind of authority. >> thank you, mr. chairman. thank you, ms. roberts. >> i recognize dr. >> thank you, dr. kohler, nish's panel found led to the tragedy and ignition of accumulated methane gas and the explosion of float coal dust. can you walk us through each one of those and find out and give

me a synopsis where msha's involvement in respect to these had they been done properly could have prevented this? let's take friction ignition at the long wall sheer. describe what that is and tell what's could have been done. >> as the cutting drum is rotating, the cutting drum has cutting picks on it. and those picks tear into the coal and into the roof rock. when the picks in particular strike harder roof rock, you create some heat. and if the bits are dull or broken, you can create quite a bit of heat. and you can leave a thermal smear, which indeed can become hot enough to ignite methane. when that occurs, it's known as a frictional ignition. one question was there anything that could have been done to have previously detected through enforcement action to prevent the cutting drum from being in the condition it was found in where there were broken and missing cutter bits, and also inoperative water sprays.

and the panel in looking at the findings in the internal review decided that no, there was nothing that msha could have done in an enforcement sense to ensure that a frictional ignition would not have occurred. >> okay. how about the methane gas. let me tell you the background. like i said before, my dad was a coal miner. the last job he had before he retired was basically he walked around and checked the coal mine for methane and air quality and all that he was the examiner. i know a little bit about that. what could have been done about that? >> all right. so based on the findings of the accident investigations, there was an accumulation of methane, which then ignited, probably from this frictional ignition. and the question is -- >> was that a bigger problem in the coal mine with their ventilation? was there -- with their -- the way they controlled the airflow through their mine?

specifically, why was there an accumulation? were they not putting up the appropriate things to direct the air the way it needed to be? that's a bigger issue, right? >> that's a bigger issue. and the panel i served on did not redo any part of the accident investigation. we simply used the facts that they gleaned. so there was an excess amount of methane that had accumulated, a very effective way to reduce accumulations of methane is through ventilating, proper ventilating air. there was not proper ventilating air, according to the investigations. one of the reasons that there was improper ventilating air down in that area of the mine was because of a partial blockage in the tailgate entry from a roof fall. >> now i can -- sorry to interrupt. my dad, as an examiner, he would have come in previous shift and saw that was improper, he would have reported that up and that

would have been corrected or the next shift couldn't come down that coal mine. so why did you find out why that that happened? >> i can't speak to why the operators' preshift examination is or the operators' personnel didn't detect and do anything than. >> i guess my argument is they probably did. and the question is did you find where that -- i mean i can't imagine the examiner, whatever you call them today would have not reported that. i mean it's pretty simple. you hold up an airflow meter, right, and it tells you where the air is moving, which direction. >> or a visual inspection. the internal investigation revealed that that portion of the tailgate had been visited, inspected four times, and that would have been an opportunity to notice that there were missing supplemental roof supports. if those roof supports had been in place, it's less likely that there would have such a roof fall that blocked the air. >> i guess my final question is,

and this will be something that -- and i'm not implying any impropriety anywhere along the line. but was there any evidence anywhere along the line for financial incentive of anyone this process other than the operator not to correct these problems? i mean or if the problems were identified, financial incentive not to report them properly? >> there was nothing that we found in the internal review report that would suggest that. >> and as a follow-up, do you think based on what -- well, it seems my time has expired. so i'll yield back. thank you. >> thanks for being observant. the gentleman from west virginia, mr. rahal. >> thank you, mr. chairman. i thank the panel for their testimony and as well as you, mr. roberts, for all you do for