it stated that the state and local police must follow the fourth amendment. caller: we talked about this over and over in class. the answer has got to be d. guest: is the supremacy case for the supreme court moved that national government is supreme over the state. host: it was the first case that established it. guest: merkel versus maryland did two things. -- mccullough versus maryland

did two things. it gave flexibility to the interstate commerce seat clause. host: thank you for calling in. caller: i would like to give a shout out to my teacher. he has been a great asset to a share. my question is about the supreme court cases. what is the chance that we would get a supreme court case on the test? guest: there is a good chance. that could be an overwhelming thought because there is no shortage of cases. there are a few. we just talked about a couple. i think it would not be unusual to see roe v. wade. do not be overwhelmed by it. a steady four or five or six critical cases, the big ones.

you'll be fine. host: what goes into preparation? who is responsible for putting this test together? guest: this is a college board test. high school students across the country are looking for college credit, a way to save tuition cost, by scoring honors course on the college board test. host: did teachers have been put on this test? guest: there is a test development committee. this is a group that puts together the s.a.t. they have been in the business of standardized testing for a long time. >> we do not know what is on this test. the note the broad concepts. host: alabama, christine. caller: good morning.

host: you are going to hear a little feedback. go ahead. caller: i am wondering what you could tell me about campaign finance reform. guest: one of the most complicated topics -- the students are answering the hot ones. these are fantastic. cancans finance is very confusing, but i would like to distill it down to a few points. there are limits. our system does not allow the fat cats to come in and ride out checks for millions of dollars and million dollars there. can they find it is marked by its limits. -- campaign finance is marked by its limits. baalbecthis is not an opportunir fat cats to lay down a lot of money. there are loopholes. one of the loopholes is

something called a 527. this as an independent expenditure. i may be limited as a citizen to give money to my politician, but i am on limited -- unlimited on how much i can spend on my own. if i run advertisements or put something in the newspaper or promoting an issue, there is no limit on that. if i am a fat cat, there are ways for me to spend big money. i can only give a certain amount to my local politician. >> the previous caller asked about supreme court cases. one of the biggest ones this year was the psittacine united case. you will not have to know that case, but what you should know is that the first amendment right to free speech has often been used to limit campaign finance laws, especially the independent expenditures where if you are an independent group, giving money independently

sometimes can be unlimited. host: this is from twitter -- guest: both of these come from the 14th amendment. they both go back to the civil rights. equal protection clause is really at the heart of brown versus the board of education. it is about overturning the landmark. due process clause is part of the 14th amendment that built into that process, selective and corporation. the idea that state and local governments must abide by parts of the bill of rights. >> some have argued that the single greatest act of our government was the 14th amendment. host: if your past, -- a view or asks, are they available for download at itunes? guest: it is a great idea and i

do not know anybody who is doing it. caller: good morning. my question this morning is, what is special about the house of representatives? and what is special about the senate? guest: we love talking about differences. i look at the differences between the house and the senate, let's talk about legislative process. in the house, there is a rules committee. they determine the debate in the house. willoughby and open debate or a closed debate? -- will it be an open debate or a close debate? oftentimes, the majority party will have a closed rule which keeps that vote narrow and to the point of the original bill. there is no rules committee in the senate. all boats and all debates in the senate are open to the debates

process. everybody is talking about the filibuster. the filibuster allows one senator to plot a debate by simply saying, i am not for this bill. in the old days, you had to talk that day -- that bill to death. that requires 60 votes. the senate is not a majority body. it is a supermajority body. unless they reach that 60 votes number, nothing gets done in the senate. that is because of the filibuster. >> certainly, you should know the expectation was always that they act quickly on what the people want. the senate, elected every six years, tries to slow things down. that is exactly how the process works. host: the next call is from chicago. caller: good morning.

thank you to everyone. my question is, are there any specific amendments or rights in the bill of rights that we should note? guest: great question. again, this is not going to be a trivia test. they really want a broad brush stroke test where you are going to be asked to know some of the more important critical moments and ideas and concepts. with respect to the bill of rights, know the first amendment. i would no free speech, free press, know the distinction of free religion. i would also know petition and assembly. there is a good chance that on a free response question dealing with interest groups, you might need to add and your answer the first amendment issue because it is the right to assembly. i think the second amendment is important.

the fifth amendment will definitely be part of this test. possibly the eighth amendment. >> do not forget the 10th amendment. host: as far as the free response question, give us an example. how are they phrased? guest: it is not an essay question students do not have to write an introductory paragraph. but there are three or four components that will test their knowledge and understanding of vocabulary and how it might transcend. you might have a question on transparency in government and why is it important in the republic for citizens to have access to information. >> another example would be to define the word gerrymandering. in addition, argue how the supreme court rules in gerrymandering cases. host: next call is from

michigan. caller: i was wondering if you could point out some key differences between the executive office of the president and the cabinet. guest: the white house staff nurses the cabinet. the president gets most of his day to day advice from a handful of advisers that are part of the white house staff. they did not have to be approved by the u.s. senate. on the other hand, you have the cabinet which makes up part of the federal bureaucracy. cabinet secretaries to have to be approved by the u.s. senate. they're part of the decision making. they're not necessarily there every moment of the day. host: this is all of twitter -- guest: great question. there'll be a distinction on monday's test between the formal powers of the president and the informal powers. formal power is the specifically

delineated powers that the founding fathers wrote in night -- 1787. our government has grown since and we now talk about informal powers. we talk about the implied powers. these are those powers that are expressly stated -- are not expressly stated, but now or curly -- clearly understood as powers of the president. the power of the presidency is founded most in those in formal powers. things that executive order, executive privilege, the ability of the president to use public opinion to conjure up his support. none of which the founding fathers talked about. host: here is an example of a question from a previous test.

guest: speaking held directly to the american people and speaking face-to-face with members of congress, trying to persuade them to do with the president wants them to do. host: colorado, thank you for holding. caller: i would like to say hello to mr. clay. i was wondering if you could tell me the difference between the primary and caucus. guest: there is a really good chance that one of the questions will be -- will deal with campaigns and elections. this is a distinction that you may be asked to make. the primary season, this is the season in which we select our candidate, historical lee, they held caucuses. it caucus is for a narrow audience that literally just arrives in a room, discuss as

which candidate they prefer, and that small group decide and pass that on to the state political party. it is not very democratic. as our country demanded greater democratization, states really in recent years would to a primary election. they ran just like the general election so voters can cast a vote and the number of votes cast, that is the candidate. most states today have a primary. if you have a few high-profile caucus states like iowa, they are always first in the selection of a presidential candidate. we call the front loading. >> voters in a primary and caucus tend to be much more ideological than your typical

voter in a general election. the typical voter is going to be much more liberal been a more moderate voter in the general election. the candidate have to shape their campaign message knowing these voters are coming up to vote in these primaries. host: can you explain the differences between the separation of power, checks and balances? guest: sounds like the first three weeks of class. >> it is a good question. the bottom line is that there is not a whole lot of difference. there are examples of how our founding fathers were so afraid of putting power in one place, it wanted to dilute the power wherever they could. so much so that they created more government said there would be less government. federalism create a national, state, and local government.

that is federalism. all in an attempt to limit the power of government over our lives. it is a way to protect our liberty. checks and balances did that and raise national level. -- did that at a national level. host: in new jersey, thank you for joining us. caller: good morning. i would like to give a shout out to our teacher. my question is, can we expect questions on the weakness of the articles of confederation on the test? guest: you might have a question about the articles of confederation. the national government was very weak under the articles of confederation. with things like that, and they showed at alexander hamilton and james madison the need for a much stronger central government, which was created in the u.s. constitution.

host: i think the articles of confederation talk about the umbrella of the whole course. holds the power? how is that power ground? -- who holds the power? how was that power brown? grown? the entire test is really about that theme. power in the government. host: mass., melissa, good morning. caller: i want to give a shout out to newport high school. what is the significance -- guest: this is where the first amendment creates this loophole. in the 1970's, congress restricted to -- restricted campaign spending. it was a supreme court case that if your a multimillionaire,

you have a first amendment right to spend as much money as you want on your own campaign. it is an example of how campaign spending is protected by the first amendment. >> it was a mixed message. host: what is your second question? caller: i want to know, do the states have been the ability to check the federal government? guest: this is often confusing because the primary focus of this test is the national government. we do not get a lot of chances to teach about state governments. there are many checks in the government in the form of federalism. there are many examples we can think of. even this story in arizona kind of test that. ken arizona pass a law that the

national government might say, this is deplorable. this is the prerogative of citizens in the state of arizona. >> the concept of devolution. we certainly solve the 1990's. that was the federal government handing some powers back to the states. the power to set their own speed limits or the power to create welfare policy. that was in the 1990's. host: alabama, go ahead. caller: i was wondering if we could go over the federal bureaucracy and the powers that the bureaucratic office holders have. guest: bureaucracy is there to enforce the law. in the end, congress makes the law, but the bureaucracy is there to enforce it. the president is the chief executive. he is in charge of the bureaucracy and the delegates

those powers. host: this is off of twitter -- guest: pigeonholing, i could use it in a variety of ways. i am thinking of the narrow focus issue that the president or congress or any institution -- it is all about getting your issue on the agenda. getting your issue on the docket. >> in the legislative process, pigeonholing refers to the idea that most of bill sadr introduced on capitol hill died in committee. -- most built that are introduced on capitol hill died in committee. they get stuck there. there pigeonholed and they never get out. host: los angeles, marion, good morning.

caller: defined the term competency and do we have an imperial president? guest: an imperial presidency comes from a book in the 1970's and it is all about power. great question. these are the types of things you'll be asked to know. i do not think you will need to know imperial presidency as a term. you will certainly be asked about the power of the presidency. had grown to such an extent that it almost goes unchecked? when you start to look at the informal powers, executive order, executive agreements that do not require congressional approval -- approval, one could still argue that despite the fact that schlesinger wrote about the imperial presidency of

nixon and how congress tried to break down some of those unchecked powers, i think we have a powerful president. we will have a powerful president tomorrow and forever. host: what is the commerce clause? guest: this is part of article one in the constitution. the framers were very concerned about power and giving too much power to government. the listed specific powers that congress could do. those are called the expressed powers. the commerce clause is clause 3. it gives congress the power to regulate interstate trade between states. tyou have seen the right to regulate commerce really branch into any economic activity in the united states. the the national government

have the power to ask citizens to buy health care under the commerce clause? >> the commerce clause is one of the pieces of constitution that has empowered our government to do a whole lot more. recently, in a court case, one of the justices asked the attorney, is there anything the commerce clause has not empowered the government to do? justice scalia said, don't answer that you do not want to give them any ideas. host: chicago, thank you for calling in today. caller: good morning. i would like to give a shout out to our ap government class. foreign policy -- is that going to be on the test? guest: great word bank there. i do not think he will need to

know a whole lot about foreign policy. but you may be asked to talk about the role of congress and the president have both formally and informally informed policy. for instance, what are the former powers of congress as they relate to for policy? the immediate answer should be, to declare war. congress declares war, not the president. however, what are the formal powers of the president relating to foreign policy? he's the commander-in-chief. here you have the checks and balances interplay. i am not so sure you'll need to know about the details of foreign policy. >> you should also know that congress passes the budget for the military. if the president does deployed troops, the war powers resolution says the president must notify congress within 48 hours and congress has to improve those ground troops within 60 days. in the end, congress always has to approve the money spent for

the military. >host: if you are just joining us, we're helping government students prepare for their exam on monday. our guests are both from adlai stevenson high school. they teach history and other related courses. these sentiments have joined us to give you the students -- these gentlemen have joined us to give students advice. if you want to go to their web site, cbs2chicago.com/school. guest: i've been taking this course for almost 20 years. -- i have been teaching this course for almost 20 years. preparing for this test is meaningful and purposeful. it is really about a lifestyle.

we began branching out. the blog grew bigger than we ever thought it would be. >> is really about showing how technology can expand our classrooms beyond the bricks and mortar. it started with a radio program and the internet. we really appreciate c-span for bringing it straight to our students. host: are you surprised? guest: i am pleasantly surprised. host: columbus, ohio. thank you for waiting. caller: my question is from the 1999 to aid the government test -- ap government test. in which of the following does congress moved to regain powers previously lost in the executive branch?

the answer is the budgets control act. guest: in 1974, congress passed a lot that essentially institutionalize the budget making process. one of the things they came up was the actual process. the president recommends the budget, congress then works over those recommendations because in the end, congress has to make the law. in the end, the president has to sign it. what also said it was that if congress approves spending money, the president cannot compound those funds. the president must spend the money that congress tells him to spend. host: off of twitter -- guest: we talked about crosscutting, we're looking at the demographics of the bill -- demographics of the voters. who are the conservatives? who are the liberals?

i am in evangelical protestant christian, but i happen to be african-american. protestant christians tend to move to the right and african americans tend to move to the left. you have to factors pushing into different directions. this is what makes our voting electorate so interesting to study. host: illinois, to students. good morning. caller: would like to ask a question about mandates and the different types. guest: this is a discussion about federalism. it is a discussion that the federal government wants to

impose its power on the states. how do you do that? how the states decide to follow that federal lead? they can do it by way of a stick, use a mandate. that requires the states to follow the federal lead. or they can provide money, this would be a grant. both cases are examples of how the federal government tries to impose its will or its agenda on to the states. it is a great question. those are two students of mine. host: do you want to try a question? i lost the question. thank you for calling in. we appreciated. next call is from georgia,

danny. caller: i want to give a shout out to my teacher. what is congressional reinforcement? guest: reapportionment is going on right now because every 10 years we count be -- we county population with the senses. istates like california and florida really skyrocket in population and a gain representatives. meanwhile, states are stagnant and they lose representatives to the west and the south. the idea is divvying up those representatives proportionally across the country. when you draw the boundaries of those legislative units, that is called redistricting. when you draw the boundaries with a political motive, that is

called gerrymandering. host: mdaryland -- guest: great question. we're talking about primary elections. those elections in which we choose our candidate. most states have closed primaries. it is one reason why the turnout for primaries is so low. a closed primary means that only a registered member of a particular party can vote. when you go votes in a closed primary, you have to declare that you are a democrat or republican. you will only get the democratic ballot or the republican ballot. the increasing majorities of americans see themselves as independents. they do not select the candidate. in the general election, when they see candidate they do not like, they blame the process.

an open primary allow split ticket voting in the primary stage where i could vote for a democratic candidate for governor, but on the same ballot, there is a republican candidate for senate. most states have a closed primary. host: a simple question rate which will likely advise the president on a day-to-day management of the federal bureaucracy? guest: it would be the white house chief of staff. he is in the room on a daily basis. the white house staff is really made up of his closest advisers. these are men and women from his campaign staff. the cadbury oftentimes are

political appointees who are not involved on a day-to-day basis. many of whom become a career bureaucrat. >> the cabinet members have both loyalty to the president. host: what is the difference between a categorical and revenue sharing? guest: it is money from the federal government giving state and local governments. with transportation, giving a block of money to a state to fix highways that the state might select. categorical grants are for a much more specific type of funding. if your school is creating access for the disabled, that would be given any categorical grant that must be spent for those specific improvements for disabled students.

host: fla., shannon. caller: i want to give a shout out to our awesome teacher. i know you guys are both teachers and i was wondering, what were you drilling into your students' heads yesterday? guest: ne predicted questions? we did not know what is on the test, but it would be good to have a question on interest groups. i have been predicting a question on transparency and the importance of being able to see what government is doing and how the first amendment protect that. executive privilege, when the president is able to hide information from the press and from the public, how it can constrained. >> i was one part coach and one part cheerleader. when you approach the wall of the exam, did not see it as a hurdle. see it as an opportunity.

aquasco richmond, va., you are next. caller: i was wondering if you could go over the finer points of a gideon versus ogden and how women obverses -- and how it helps with the religious cases? guest: it is a note -- it is really an old case. you'll be asked to know in generality. this is the case that expanded the power of government. if you get an opportunity to talk about the growth of the national government, that is a great case to drop in. you cannot know them all. as far as the religious cases, there is a great number of cases to look at. i would know the distinction between the establishment

clause and the free exercise clause. know when the establishment clause was incorporated. 1947 -- there was a wall of separation between church and state. applying that concept to all 50 states. it dramatically change the culture and the way we talk religion in this country. host: from twitter -- guest: it would apply to the topic of gay marriage. that is also where we see federalism. the idea that if one state recognizes a contract, what happens if those people moved to a different state? today have to recognize the contract, too? that is the perfect example of where we would see federalism. different states have different standards. it how do you interpret that?

host: another question from california. caller: just a quick shot out to independence high school. i heard about the arizona law recently and i was wondering what kind of -- if we could run through quickly just how waybill becomes a lot. guest: we're talking about the arizona law of immigration. it is a wonderful opportunity to read the papers this week into imagines federalism works. the citizens of arizona have the constitutional right democratically to make laws. at the same time, because of constitutional principles, guarantees found in the 14th

amendment, the federal government will have a say in this and make comments and put pressure on to the state government. it appears as though the arizona legislature is doing that. it is the granddaddy question of them all. look at the archives here on c- span. it is an amazing resources. if you want to understand how the legislative process works, do a little searching in the archives here on c-span. it is not an easy process. it takes time. if you're looking at the legislative process or the making of sausage, it is not pretty. in the end when it is done, it is important. h>> it must pass both chambers. the president can either signed

-- sign that bill at the end or he can veto it. all bills have to be introduced in each chamber and that the committees are the most important part of the process. iguest: know the difference between the standing committees and the conference committee's. host: thank you for the shout out on our video library. if you want to go, it is on our website. you can type in a name or a topic, whatever. related video will pop up and give you everything within our last 25 years of coverage. a couple more questions. from twitter --

guest: congress has tried to limit lobbying in terms of making it lobbyist register by law. there are certainly at laws about ethics about what lobbyists can get and how much they can get and what the relationship is between a lawmaker and a lobbyist. lobbying by special interest groups, they are lobbying for a very narrow interest. they're protected by the first amendment. host: one more question. caller: my name is stephanie. i was wondering if you could explain political action committees. guest: political action committees, we're talking about -- an interest group advocates for a particular narrow policy. a political action committee raises money to distribute

money. both are pushing and advocating for policy. one is more on the information side. it is another loophole around some of those campaign finance limits. >> the corporation has to do threat -- do so through their political action committee. that is a legal limit that has been upheld by the supreme court. host: final thoughts? guest: i am very excited for the students. if you do have any last minute questions over the weekend, we have alumni helping students answer questions. we hope you're able to use that. >> i am so proud of the students and the questions. it is so easy to hear the news

about the negative stories on kids and how they abuse technology. these are the technologies that are linking a new generation of students toward government. students toward government. i am excited because this test >> tomorrow on "washington journal," a look at the 2010 midterm elections and the effect that the tea party could have with david wasserman, and rhodes cook. also a discussion on how the deficit could affect spending with james carafano, and senior fell o of the american security project, bernard finel. that is tomorrow at 7:00 a.m. on c-span. >> sunday a televised debate between senator arlen specter

and the two candidates run fog a senate seat in pennsylvania. >> what i think is vital now is that the americans agree to talk to the taliban leaders. >> in 2000, he wrote about the began and the rise of osama bin laden. now with the 10th anniversary addition ofs book, he looks at what is next. "q & a," sunday night on c-span. >> a c-span voy library video fact. there are 6,000 references to abraham lincoln in our video library. you will find lots of interesting programs on line. and for a contemporary perspective in print, there is c-span's book, abraham lincoln, now in paper back at your favorite book seller. >> next, a congressional hearing on mining and work

place safety and the big branch west virginia coal mine explosion that killed 27 workers. first, remarks from tom har ken of iowa. there is 3:15. [inaudible conversations] >> the senate committee on health education and labor will please come to order. the topic of today's hearing couldn't be more timely or more important in the wake of the west virginia coal mine disaster the refinery explosion and course washington where seven workers died. a disaster that killed six people of the connecticut gas power plant and just last week a blast from the louisiana oil rig often built with mexico most likely killed 11 workers. it is time to focus renewed attention on the safety of our fellow workers. the string of recent deaths and

injuries is a grim reminder that to many employers cut corners on safety to many workers paid the price with their lives. as the son of a coal miner i feel these losses deeply in a very personal level. my thoughts and prayers are with the families and co-workers of those killed. of those injured or missing because these awful tragedies. while there is little comfort we can offer during the struggle time, we can promise their loved ones will not have died in vain. we will learn from these tragedies so that no one has to go to work in fear they won't come home at the end of the shift. certainly the history of the american workplace of justice when we focus our efforts we can do great things to improve safety and health. since the passage of the safety act and occupational safety and health act for decades ago countless lives have been saved in a number of workplace actions dramatically reduced.

but we still have a long way to go. every year tens of thousands of american workers are killed or disabled by workplace injuries and occupational disease. in 2008, the latest available data 5,000 to under 14 workers were killed by traumatic injuries. 5,214 workers were killed by a dramatic increase in 2008. an estimated 50 to 60,000 died from occupational disease. to many workers remain in harm's way and is long past time to strengthen the critical lost that help keep americans safe on the job. one area and our health and safety laws that needs particular attention is enforcement. one of the vast majority of employers are responsible and do all they can to protect their workers there is unfortunately a population of employers to prioritize the profits over

safety. and know when we had repeatedly violated the law. that would deadly blast at the big branch was a classic example of the dangers of this approach. this facility had a record of numerous and serious safety violations including 550 violations last year alone. 515 last year alone. that is 50% more than the national average. so far this year it is a completed 124 additional violations. even more troubling, 48 -- 48 of these recruit citations were repeated, quote, significant and substantial violations of safety standards that operator new or should have known represented a serious threat to the worker safety. the problem of the repeat offenders is certainly not limited to the world of mining. labor and it uses common in many of our most dangerous industries

unfortunately the penalties for breaking are often so minimal that employers can dismiss them as a minor cost of doing business. currently serious violations where there is a substantial probability of death or serious physical harm are subject to a maximum civil penalty of $7,000. for comparison that is $18,000 less than the maximum fine for a class on civil and environmental violation under the clean air act. a criminal penalties are also weak. if a worker dies because of the willful act of his or her employer that employer faces a maximum conviction for a misdemeanor and up to six months in jail. in contrast, that same employer willfully violating the clean

water act would be fined up to $250,000 spend up to 15 years in prison. in other words, this is my point. our laws do more to protect the environment than it does our workers. in addition to putting a real teeth in the safety and health we've to make sure the federal agencies have the enforcement tools they need to identify lions and non-negative workplaces that there are safety records and hold these repeat offenders accountable. we have provisions in the wall that are supposed to target the repeat offenders but they are rendered ineffective. averitt mistaken interpretations or undermined by employers who would go to great lengths to gain the system. there's no question in line like the upper big branch should of been receiving special scrutiny under the pattern of the violation provisions of the safety laws. this is an operator that even in the wake of the worst mining

disasters in recent history continues to use such unsafe practices that just today the mine safety health disorder today that the withdrawal of the miners from three different asset negative 22 hazardous conditions. but as bad as the record was, the law has been interpreted to allow them to continue operating without a pattern of violation treatment as long as they can reduce the violation by more than one-third in response to a written warning. the record as spotty as a partial reduction in the numerous citations is hardly a sign of a safe mine and shouldn't be a get out of jail free card to escape the intent of deval. it's not just historical the week interpretations of the mall to blame, employers also find creative ways to ensure the system cannot work as we intend to read in the mining industry

forcible chronic violators have avoided being placed on the pattern of the violation status and avoid paying penalties by contesting nearly every citation that is against them because msha uses on the final orders to establish a pattern of violations and the average contested citations takes over a year to educate since there are now 16,000 cases buchwald at the federal mine safety and review commission repeat offenders are able to have a pattern of violations that is why can't dustin large numbers of the violations. at the upper deck branch, and for civil massive contested 90% of its significant and substantial violations in 2007. a similar problem is seen in dimond mining workplaces while the backlog is not nearly as

great as the occupational safety and health review commission under the wheat all employers to even have to fix the known hazard until the entire review process completed years later. i think this is unacceptable and it has got to change. so we sit here today on the eve of a worker's memorial day tomorrow, april 28, worker's memorial day, a day set aside to remember the thousands of men and women who die on the job and in our country every year. the best way we can honor their memory is to redo our efforts to protect workers' lives and improve safety and health in the country's coal mines and other dangerous workplaces. with that, i would yield to my friend, senator isaacson. >> thank you, chairman harkin. first of all i would ask an animal skins and the full statement of senator enzi the ranking member of the committee be placed in the record. a little over three years ago just after christmas i got in an

airplane with senator ted kennedy and jay rockefeller, senator bayh deinze and traveled to the disaster in west virginia. got to see firsthand the tragedy of the death of miners in an accident, got to meet first hand with the families of those west virginians that have lost their loved and still have the picture given to me by his daughter who later attended the signing at the exit of office building with a minor act that senator rockefeller and myself, senator enzi and kennedy were proud to be a part of. i take this hearing probably more serious than just about any hearing because when you look at the face of someone who's lost a loved one to a tragedy no matter what the tragedy is you understand the full impact of the loss of a human life and not much less on this committee what to do is anything other than ensure the laws that we have working on the interest of the safety of the miners and make sure that we approach these with

very serious study opinions. in particular, i was very pleased at that time to work in a the leverett way to make sure we found out the determination of the cause before we ran off half cocked thinking by adding the fine or a statute we would improve the situation. i think i correct, mr. main command can correct me if i am wrong but on the day of the explosion there were talking about the day there were inspectors in the mine they were just in another part of the online and which shows you even on the date the problem if the inspectors that are there to prevent the problem with their then there must be something either they need to do or we need to do. however i want to point out because senator rockefeller and i and i am referring here because he can correct me if i am wrong we went to an extensive effort in the mine act to try to target those things we knew we could do to hopefully meet with

every person's role in the committee is and it is to ensure this never happens again. but it's happened again and that is a week of call for all of us. everybody at msha, everybody at osha and in the congress act on. but we should recognize, too, the in for some of the existing law is as important as creating a new law that you think will get at the problem if you are not using the existing law. flexible i want to read a few things msha has the authority to do now. they made under section 104 order an immediate withdrawal of any from any part of the mine or from the entire mind when a hazard that cannot be immediately he stated in danger and miners. i am not about to say that the inspectors there that they didn't know there was something getting ready to happen but they obviously didn't or did have the power to close at.

deacons to get temporary or permanent injunctive relief to close the mine or take any other appropriate action whenever it finds an operator engaged in behavior that constitutes a continuing hazard to the minors under section 818 of the act. if they determine that there is a consistent pattern of significant and substantial violations, they may issue a pattern of violation letter under 104 for which the violations found after the issuance of the better they would order winstrol on the miners from the affected area and they may under the act find violations whereby there has been a reckless repeated failure to make reasonable efforts to eliminate an known violation of a mandatory health and safety standard that substantially and approximately caused or reasonably could have been expected to cause the death of a serious vital injury and the violation can cover a fine up to

two injured $25,000. my point is not to say that we have done enough that it is to say that we have given a lot of the 40 already. and the enforcement of that and the use of that authority is critical if the united states senate reach the goal as was stated as our money the president spoke about the other night to see to it that this never happens again we want to do that in the act and we want to do that today but they are all hands on deck. it's a pretty we can find that can do anything to help us find the causes so we can prohibit the causes. it's finding out all the information of who did what and when and it's taking the authorities that exist making sure they were exercised before we blame it on where you pass a new authority to correct something that wasn't used anyway. whatever the case, the wives and loved ones or the 29 miners of west virginia lost in the most recent incident are at the top

of the mine and bottom of our hearts and i look forward to working with the chairman, senator rockefeller, senator byrd. i think that the congressman deserves a tremendous amount of credit for -- i saw more of him on television and he was there at the right hand of the family. the inspectors and the government officials seem to wait that everything that could be done was done and i commend him for doing that and senator rockefeller and senator byrd for their untiring support efforts to improve the mine safety which is critical to the families that is critical to the great state of west virginia and with that i yield back my time. >> i asked senator rockefeller to join us here and i would like to recognize him for a brief statement. >> thank you. l.i.e. enormously appreciate the attitude of yourself and your colleagues and allow me to be

here as indeed you did after the mine disaster and we wrote legislation. congressman being in the audience is important i just wish that everybody other than those who were there watching in the audience and the author overflow room could have been at the ceremony memorial on sunday which is one of the most powerful and a gripping experiences i have ever had. workplace safety is important all industries but it's absolutely critical in those industries where the risks of injury or greed and the consequences of the poor safety our house of year. sadly we've been there before after the tragedy of -- i want

to be a member but i'm not going to push the envelope. a lot of the members of their at sago that senators kennedy and i will just say in particular senator isaacson and senator enzi were there because they have not been to west virginia before. they haven't been to a mine disaster before and they moved in with those families and talked with them and for the period of quite a long period they were part and parcel and then they became part and parcel of the legislation that we passed. it wouldn't have passed if it hadn't been for senator isaacson and senator enzi and their perseverance as if the had become west virginians. so without increase safety in

the minds and pass the miners act which we thought was pretty good. we were reacting to what we have seen at the sago and it was a good piece of legislation that did improve safety particularly with respect to the response teams and actually the only piece of the federal legislation in the previous three years. which says something probably not very good. but frankly, that legislation was not enough. first and foremost, safety is about a company doing the right thing to be some de true culture of safety. easily said hard to do, something that i want to be talking with mr. main about. we need to find out what is working in safe mines where people are doing the same thing. they may be larger they may be smaller because these are doing

the right thing every day and we cannot forget about what it is about them that allows them to do the same act of mining but to do it safety, what do they do that others don't? and then on the other hand we need to make sure what is not working likewise in more dangerous minds, why do injuries and deaths occur their whereas they don't in the mines that are watched over more carefully. because the mine operators show no regard for safety should not bail out to gain the competitive advantage because some are being very careful and very specific in the way they try to do the safety and the right way and others aren't and the sad fact is in the coal fields which are remote, far distant in this case senator isaacson even more distant than sago. way, way back in the hills of southern west virginia cities of

federal and state governments stepping into but i think toughening of the laws where appropriate. i don't disagree with what you said, senator isaacson, but i think there is room for improvement, and we sort of react to the latest mine disaster. is that a good way to do safety legislation? i don't think it probably is that it is a heck of a motivator and it makes us do things we might not otherwise have done, and so we need to grab the spirit of the moment, the sadness of this moment and do our duty. ..

>> hof and then budget and it has to follow that. we need to add the loopholes

and we know what that is using the appeal process because that way they can go ahead and minuses they don't have to appeal to pay the mind taking keep doing what they are doing and that does not seem right at all. we also need to improve msha enforcement effort that the authority msha must meet and it must not be shy about this. it is a culture that it is different than the last time we did legislation about such things as the subpoena power over all the more far-fetched but not out of the ring enhanced criminal penalties. number four. also more work to do to protect whistle-blowers. i believe in whistle-blowers not irresponsible whistle-blowers who just had

a bad week with their wife and their furious and want to cause trouble but there is nothing in me that says we cannot find a way to separate those out and taken not just of the 1-800 number phone calls that are removed but make the whistle-blower system work. mr. chairman i thank you for letting me come here and i look forward to this. >> thank you very much senator rockefeller and my personal thanks for your great leadership in so many areas but also this the day care so much about. and others have been mentioned and congressman rahall is your and the audience represents that district where the upper big branch disaster occurred. i served in the house of years. you are welcome here

congressmen rahall if you'd like to join us at the podium however you feel. >> thank you. let me just say it was part of the record in its entirety alaska each of the witnesses if they could sum up in five minutes their testimony. we have three different panels of i am not mistaken. four different panels and we will start first with mr. chow mein who -- mr. main excuse me. let me get my paper straight down. assistant secretary of labor for mine safety and health and your statement will be made a part of the record if

you could sum up and five minutes i would appreciated. >> chairman harkin ranking member in the and members of the committee thank you for inviting us here. i wish it were different circumstances i do want to pass on words of appreciation for senator burr and rockefeller and others who spent a lot of time with us at the upper big branch mind during some tough days and shared with us with the difficulties that his face when you have an emergency like this. several times per day we had to call the families together to give them bad news or news of hope but never good news. that takes a toll on the family that no one can never appreciate or understand. that is what helps me with the job that i have to end to that kind of grief in the

coal fields of this country but i do appreciate all of the support we had from the folks here during those difficult days. i also express my condolences to friends and family say coworkers who perished in the upper big branch line in my wishes worse speedy recovery for the minder who is under medical care. also the other injured minor who has been released from the hospital and our prayers are with them all but as the president said we owe them more than prayers but action and accountability and they ought to know there is a company that is doing what it takes to protect them and the government is looking out for their safety and remind the committee we do not just look at the mining side. it is workplace safety. in 14 workers lose their lives every day by just

doing their jobs. fatalities and coal mines are preventable. explosions in coal mines are preventable and the tragedy of a per big branch should not have to happen. april 5, to 10:00 p.m. the explosion occurred taking the lives of 29 miners and it keeps -- through today and forcing presence at upper big branch inspectors were on site 934 hours increasing up by 1854 hours in 2009, double the amount of time. doing pass the inspections there was an increasing number of violations and citations including significant and substantial violations. september 2007 it would be put in pattern violation status but yet it was able

to avoid that by reducing the level of violations and again it had a significant spike in 2009 it was issued 515 dilate -- citations. 2009 issuing 40 withdrawal orders for repeated violations and 19 times the national rate. just other massey mines had more citations the department of labor established one of these is a pattern by later. it will be the first mine placed on the status since the passage of the 1977 mining act. in the wake of this tragedy we know the weaknesses even in our strongest tools. the most important changes are needed to make responsibility for those across the country to reform

the pattern of violations of the programs. and those are most effective but the policies of this said ministration inherited make it easy for operators like massey to avoid the pattern of violations status prefer use a tactic for the potential pattern of violations status of blocked msha from putting them line in a potential pattern for over 500 days. with a two year history use over the process another 500-- you look at three years for the start of the problem. the current system allows operators to reduce the violations by 30% in 90 days which is the formula. the upper big branch mine did this and avoided the pattern status. in terms of reform there are steps which taking.

the regulatory agenda focused on regulation the required companies to take responsibility to find problems before there were discovered. what we call plan prevent protect system, looking at the catch me if you can approach. some regulations we will be talking about. we are soliciting information and use of comprehensive safety management programs and plan to reinstitute examinations for violations of mandatory self -- hazards that was from 1992 currently in the original coal mine and safety act. regulations are also planned and in addition looking at other tools sooner for the provision to seek permanent or temporary his injunctive relief. we need predatory regulatory

and legislative actions. although the commission adversely impact the process we are fundamentally and severely reduce the deterrent value of the penalties. there are more than 60,000 cases pending before the commission we should look at the 27% increase to provide sufficient personnel to quickly resolve disputes. in testimony on very 23, iowa and some specific measures to address the backlog problem that include simplifying the determination process is improving it exist of the corporate ride in the implementation of meaningful health and safety programs. federal prosecutors need more to investigate. unlike other agencies, that enforce federal law giving way to subpoena testimony as

part of the investigative process. criminal penalties must be enhanced so the threat of jail is real for the worst offenders. violations of key standard laws or safety laws should be felonies and not a misdemeanor. most importantly we must prepare the miners. they must be able to read -- rates valid safety concerns without fear of retaliation. with afford to working with a committee to strengthen whistle-blowers for minors prepare i think is necessary for the current statutes and regulations and policies and ask what more can redo to ensure the health and safety of america is miners? mine operators everyday run safe operations. they come back every day and harm to, free of bonus and free of death. that is the standard we need to put in place across this

country they have a right to go home safely after every shift for our look forward to working with this committee will be happy to answer any questions that you have. thank you again mr. chairman for calling this important hearing. >> thank you for your leadership mr. main. you said taking a look get regulatory changes that would simplify the criteria for the pattern or violation of the program. if you don't want to get into all of that no zero days now or to submit to to us that are the changes you can do that we don't have to address legislatively. if there are things you can do to release the burden so we can focus on what we need to do legislatively. if you submit that later on?

>> i would be happy. >> we will do that. >> thank you, mr. chairman. and also mr. main to testify for all of the work you and your inspectors do. do know if msha has ever saw the and should do relief to close a mine that was deemed a continuing hazard to minors? >> in terms of the objective relief, i think we're about to pursue is the first time in the history from what i am told from the legal department. >> but it is true your behalf of injunctive relief? >> there is that exist that talks in part about being part of the pattern of violations and there is some language that will publicly be tested but there is a provision that before we take the test, there may be

need for congress to take a look at remedy any shortcomings as we move forward. >> today to have never use the power that you do have? >> that particular power in my history i do not believe that is the case. >> the statement of your remarks and pre-printed testimony, third paragraph, page five you cite a spike in violations and refer 2515 citations filed 2009 and 124 in 2010. just try to figure with those violations would be a divided that number into 1.1 million which is the amount you said those fines would accumulate that is $1,725 average nine per 625

violations. then i went to look at the authority that you have got on file and under civil penalties you have up to 50,000 on standard violations come a 220 arnhem flagrant and 5,000 per day on a failure to correct, a 250,001 a criminal willful violation and 500,000 on a repeat of willful violation and then $10,000 were five years in prison for making a false statement to authorities. if i take those numbers of authority and talk about serious violations it would not take a minute to get to 1.1 million but yet you issued 639 violations in the 15 months point* where most of those like i iraq or a

miner smoking something like that what were those? >> other than smoking, i am not aware. the most often were ventilation problems combustible material and things of that nature. having been on this job for about six months trying to figure out how the components work and looking back to enforcing the tools the agency has during a course of that spike to understand the whole penalty process, one of the things i came to realize is that probably the tool that is most effective, is the ability to shut down a facility to get a problem fixed. i think looking at what the agency did over that period of time they ratcheted up the use of that much more

than normal. i think that is why i have the most of any mine in the united states as a shutdown order. there were 48 issued act the upper big branch mine and those statistics showed me that had the most. it has been my view over time that the quickest way to get something fixed is to stop it and fix it. we do need to fix the penalty system no question about that. the contest process has really crippled the implementation of the actress some great provision put been in the new miner act. that is the reason we have looked at some of these tools that do with the whole

process and one is the injunctive action that we really need to put a news as opposed to later i was asked a simple question why didn't you shut it down? if you look at the borders or the tools it is designed to find an area that is out of compliance, of course, the operator to fix at and then go back into compliance. as far as a tool that is really meant to lay out that encompasses several standard syli when you can have is the pattern of violations used the patterns of 77 dead is the heaviest that has been in the act since 1969. we need to do something quick which in turn to

relief is the best tool we have looked at and we need to fix the pattern problem that people respect to have a lot plug in to reflect after the disaster in 77 that congress really thought would fix the problem. of the application was undercut the wit 33 years without one mine having been placed on the patter but that may change going forward. as we look at the pattern of prior to the upper big branch disaster this is something we talked about at the house sharing in february, the system was broken with respect to how difficult it was to put blinders on that had a trouble compliance is -- history and how easy it was to get off. although you contest the violations, and there will

be several loaded but scheduling a hearing will be a difficulty. it still will be if we don't fix the side of the problem. be getting offside they do not put on notice but if they drop their assonance three schrute for a short period of time they can can offer cry have saw negative that were twice over identified as the pack turn minds. but i think if you go back to the mid 90's with fischer appeared of time recently 2007 is the only period of times that it was ever utilized as a tool but what we aim to do with regard to my testimony in february and now is fix that. the 24 month history is a problem of held hostage is a problem.

how we select the mines and need a better identifier of a formula of the computer error was found. one of the issues i think we have to go back to make the system work and to make it work you have to have a process in place that effectively identified as those mines that has a troubled history, quickly dealing with applying the pattern and make it tougher for them to get off if you believe they got there in the first place because they did not have the hall's safety program, one bard -- logical assumption for them to get off they have to have a program that does that. but just over 90 days with the violations but fix it so those miners could have comfort. another issue is the

subpoena issue and there is a story today over three other mines that made inspections recently. two of them before big branch and one after. all three of those were triggered by an anonymous complaints prevented miners make those? some minders did this to mike there was some specificity and worried to make a whole. plan we went in we found illegal conduct the you would not think we would see their today. only found because when the inspectors got there they captured the phone so von operator could not call underground. >> i hate to cut you off but the chairman is about to have day if it. we have went to over. you want to replace hazard to minors since the current

junket relief is that what i heard you say? you are allowed to do it if you say a persistent hazard to minors? what i was trying to understand, you would like to expand at or change it to the pattern of practice for the mine operator? >> we want to work with congress to fix that for what we need to do to change that language. >> senator burr wanted to attend. he is unable to attend if there are questions he wants to ask a will submit those for the record. but we are privileged to have senator rockefeller here and just but senator franken unless republicans and we will go back and forth.

>> mr. main 26 pages of violations with what we have been dealing with and they take place only since january 1st, 2009 saw a relatively short period of time and all of these violations, not constantly you run into the mine ventilation plants. dust control, all of those combustible materials all things that are just speaking of something about to happen. my question is, we sit here fixed on the pattern of violations of what should it be are not the but why isn't it possible for one of your people, a federal inspector, a trained, that when they come upon such a

thing, maybe a quick phone call but they have the power to shut down that portion of the mine which appears to be effective that is for real they carry violations and part of the problem which is msha was working out the appeal process. but some of these decisions that went to apply msha is a bureaucracy but to have individual folks that are well trained, professional mine inspectors they see those problems most of them worked in the mines it is hard to ms. combustible materials when you look at it and hard to miss a violation or ventilation problems when you are

feeling it. why can't they take action? why we have to go through this enormous thing leading into a pattern of violation that has never been used? >> probably a good way to start this is what the tools are that the inspectors have and i don't disagree with senator rockefeller you will see tools that will exist but if you look historically i will take an easy one. a situation where you have a miner that is not permissible that means there is a component on that piece of equipment that has a gaap that houses the electrical components that a tiny spark could get through and start

an explosion. this is something we have that we want to talk about, the commission decision over the years have defined those standards to the point* it is very difficult for that inspector to cite those conditions as a serious violation. when i look at the latest standards apply you almost have to have the explosion occurred to have a serious violation in that regard? the way the standards are interpreted and applied in this country over years of litigation through the review commission. but when the inspector goes to the mine they have full authority to use their tools of their disposable if they determine a condition of limited danger until the company fixes that specific problem.

>> but ventilation is no mystery. the dust is not a mystery. you can taste it and smell it and read them. if that is a condition that one of your inspectors of fines that he cannot simply close things down for a period of time so that that can be fixed? >> in the past there is a weakness in the enforcement with the way the law was enforced. going forward to utilize tools and our position during the recent sweeper mou kicked off after the

upper big branch to make sure we do not have another a per big branch out there. we had six mines that were shut down because the tools of the tool beg were more use them they had been over time. once the company has fix those. >> i will interrupt you write here for just a second. msha may seek temporary or permanent in june to relieve to close the mine or take appropriate action whenever it finds in operator to has a continuing has cylinders section 18 at a. you said you have a desk, explosive hazard, that is not even a question. why can't you use at and why hasn't it ever been used? >> yes. and has not been use.

>> why? why? >> it is a good question. >> who can answer it? >> i cannot speak for past administrations but we will use it. >> i sure hope so. if nothing else comes out of the hearing you will start using that. sorry to interrupt you. i wanted to get that issue taken care of. i'm sorry to have interrupted you. now let's go to senator brown. please keep in mine we have three more panels. >> senator enzi was next. >> thank you for joining us and the other panels for the mine workers and citizens

tomorrow is a worker's memorial day to honor the men and women that were killed or injured on the job and in my state alone on a one-handed 67 workers died nearly 119,000 injury claims were fired. before my question i would like to share a quick story that i shared with mr. main when he was in my office. a depiction of the canary in a birdcage pritzker privity knows what that is about to signify the importance of worker safety and all of the other things that come with that. the question i have this year mentioned in your statement that msha has limited tools to hold back tears accountable to force companies to change behavior.

you issued a withdrawal order to stop production but their own views when conditions present at imminent danger. isn't that too late in order to make a withdrawal necessary to prevent disasters? >> there is for basic tools the inspectors have. one is a citation if it is not corrected within the time given it would b.v. be close your order. then the been in danger weren't the inspector observes a condition to be imminent danger is they could shut down that area for corrective. we have the 104. >> guest: order that conditions are serious and willful violations that

could be cited first as they citation then as the order then it closes down that area until that is six. i guess what we call the d-1 series on the inspector finds a similar violation violation, but with the 48. >> the other provision is 104e pattern of violations that is a long process together and a system that is broken. the in june to relieve that -- action the something our folks were taking a look at and we fully intend to implement that. it is the one part that gets to the broader application.

we're asking congress to take a look at that to presume there will be some challenges to that to look at those pieces that may be troubling we will take the first-run and using that to the courts but that is why we hope to have support from congress. >> i guess i want to get more specific, i do think the withdrawal orders is it too late? is city now face a lives? >> we're looking at a number of things that i think we have to do to fix the problem but figure out a way to prepare the miners for the report and how we can empower them to take actions to protect themselves. that is the issue front and center but if you look at tillage recesses the order

in my opinion is the whatever the end results, it will be a lot warmer point* then having your college worked out. >> i assume that is more power. you want to reward and point* out the violations. are union mines is safer than nonunion mines? >> i think if there are worker representatives in the mines if they have a chance to free the exercise that right that congress gave them and there is absolutely no thought in my mine otherwise for the mine operator allowed workers to

have a voice of safety and freely exercise that. >> senator murray? the may figure for having this hearing to recognize the men and women we have lost from our job to talk about to make our workplaces more safe and healthy all went to express all of my sympathy across the country. to do is ago i was in a court of washington came to the memorial service for the seven men and women who'd died at the refinery preferred dan aldridge, matt, deron, lou and captain power wall an overwhelming event and i know all the families here are suffering terribly and i what to say all in this room and in the overflow room, i

really respect your courage to be here because i know nothing we can do can bring back your loved ones but your courage coming here today being in the audience really helps to push hard. we personally want to think the families that are here today. i have questions coming up promotion of but i do want to ask, mr. mains, we have worked i noticed on april 22 an article from "the new york times" about how to negative show how practices outlined in and out it had to separate subsidiary of massey the inspector of daniel was said massey mines were some of the most

difficult lines to handle " inspections that should have taken one datuk three because of first it would be spent arguing over operators over paperwork and permission to enter certain sections of the mine. do msha require the operators permission to go into a mine? >> no. >> and what is the barrier for the inspector to get and? >> i am not sure what happened in this particular case. out having been inspections there are different ways the mine operators operate. some work with the process and some use tactics to delay the inspection process. there are times when inspectors have to take extraordinary action for the right to go to the mines but does not happen often. in most cases they go

through the normal process but if you couple what was raised in that situation with three recent inspections three report to don today you'll get some ideas how some said the operations and others do not. still meant we have to look into more details but i can appreciate. >> we need to understand or know if there is something we can do and a lot to make sure the inspectors getty and. in your written testimony you talk about massey energy having a large number of citations. how does that tactic help operators with patterns of violations? >> for the cost of a postage stamp they can file a

request to contest the violation that goes into the process that is adjudicated. right now we have 16,000 case backlog and years to resolve those backlogs and until those particular violations are finalized by the court system, they cannot be counted as the operator history. >> is there the increase penalty four contested violations? >> no. >> is there any disincentive? >> one of the things we're looking at this a third disincentives for those operators to try to gain the system. there has to be a process as all of the issues get resolved to deal with that. but currently. no. there is not. >> you put your finger on it

they get a backlog until they get a final adjudication -- adjudication msha cannot do anything. >> with 16,000 the not concerned over the safety of the mine workers. >> like to associate myself with senator murray's remarks and think the family is were being here to bear witness and to make sure this does not happen two other miners and other families. do you think anyone reads your testimony about the number and nature of the violations by upper big branch line and by massey

would be shocked. i am wondering, is there something along with the law or coulter here? i assume there is no love lost between msha and massey. but, you say that the mines have stayed open and have been held open because of the way the law was interpreted. my question is, by whom? even when there is dust, a violation if and gas leaks this is what we expect to cause the explosion. the way the law has been

interpreted it will keep them open even in the face of all of these violations to interpreted the law that way? >> there is different litigation that has happened that has led to the current application. the historical applications have been developed through the commission and that is one of the reasons we need to take a look at some of the provisions better at the center of the universe for limiting the msha ability to use some of these things and appointed earlier the notion of a promise ability violation review have a

piece of equipment that has a gaap only takes a spark to blow up a coal mine at ast to go to an extraordinary step before you consider that a serious. >> i am sorry but you are saying that the courts? >> guess there has been litigation over the years of has refined the definitions of the application of the loss. >> these are federal judges? >> federal review commissions. >> there are some areas we're looking at for relief we may be looking at legislative leave him we need a chance to discuss with the committee one is to redefine the significant and substantial issue. another is on a failure of the part of the operator to

address a safety condition. those based on my view has been constrained to the point* if you look at the one-third of the violations looking at the period of 1980 you look at 80%. i am not saying that is where they should land but over the years, that is worthy application have settled and to change that we need to change the definitions to identify which standards are serious and which are not. we have a number on the table to take a look at to try to figure out what reforms. >> what is the us s? >> it derives a moral failure and equalizes the

those of have to be significant and substantial. >> we have three other panels and another question i will submit to you. you say you want to the minors to be empowered. there are some miner representitive systems where they can participate point* but only 2% of that and i 19 but i will submit that in writing. thank you. secretary? >> mr. chairman. >> we have been joined by the ranking member senator enzi. >> i appreciate it senator i six and sitting in for me and putting my statement in the record and they do understand the upper big branch line is the worst accident in 20 years that to

29 people lost their lives and they appreciate those who are here and our sympathies go out to you. and as you may know i represent other coal mining states and being able to save remind our national resources is important to the people and data so i work with senator rockefeller and senator burr to write that minors act 2006 with the string of tragedies that occurred that year. it is very frustrating to hear of activity at this mine was over 500 violations 100 so far in the current year and a significant amount were unwarranted failures the last two years how many were requested to be removed because of hazardous conditions? there were 180 days there in

2009 but nobody from the regional office made sure it was put on the potential pattern of violations status as it should have been brian know it was put on a probation status and a move quickly to reduce and improve the safety record and i also know compared 22007 msha has more inspectors and a larger budget. i will submit a series of questions that deal with us. i will not take up more time knowing we have three more panels to go but i think senator rockefeller for all of the action he helped us to take one of the fastest times we have never passed a law in congress and i know from the oversight hearings that we did do a lot of those things and that we had more covered. we do expect agencies to

report when they do find something that is not covered by the lot that needs to be. i will have those questions to dig deeper. thank you for being here today. >> host: thank you for your issue. >> and please think secretary solis for her help on this and heard great interest to move this forward. we have talked on a couple of locations and she wants to get to the bottom of this and change things. >> now that will never happen. >> he has been president of united mine workers since 1995 a sixth generation coal miner who has devoted his career to better life for miners. from west virginia technical

college 1987 received an honorary doctorate from technology in 1997. then we have mr. geoff harris a third-generation miner working in mines for more than 30 years and currently employed at the harris number one mine in boone county where he works as the roof boulder who pins the underground roof of the mine to keep it safe. next we have mr. addington dead deputy director of the appellation citizens law center. fighting for justice and the coal fields by representing coal miners and the families for black long. also director word the project and he got a lot from the university of kentucky and lastly, than national mining association for regulatory affairs his responsibilities include

working with member companies for use in a mine with federal and state regulators with the safety and health programs also serve on the executive committee of the national safety council and various planning and committees 219 from occupational safety and health before joining it usa assistant to mr. rahall from virginia park a welcome you and thank you for being here. the statements will be made a part of the record in their entirety i would appreciate it if you would sum it up in five minutes so we could engage with rounds of questions. mr. roberts will come back to this committee you're no stranger to us and i know you have been going through over the last several weeks. thank you for being here. >> thank you very much

mr. chairman and want to thank you for holding the hearing today and thank the committee for the work you did in 2006 and thank you for the compassion you have shown over the years to coal miners involved in tragedies. we're very thankful for the legislation passed in 2006 i want to think senator rockefeller for his lifelong commitment to keep coal miner safe and also senator burr for his hard work for many years of this particular issue and our friend to was here today not only in this instance for hard work, i also want to recognize family members who are here today, they are here and the country of what

i don't have to do this again for the rest of my life is my hope. so to enter the world service i said i hope this is my last one. but they were my friends. my neighbors. i have known some of them good day that is one of the most emotional things i have been through in a while. [laughter] >> as we come out tonight too just say no those in the last four years of their preventable i want to say something that i firmly believe there with my heart that this tragedy never should have occurred and i will pick plans and the only way it will if it was in compliance with the laws written and updated 1977 and

it would have been impossible to stretch what could have occurred. pointing at one other thing, we avoided one thing. why is it we have operators in this nation that will practice this kind of mining? we have coal companies on coal river and login county for 100 years. i defy anyone to go back and see where peabody has a tragedy where aramco had a tragedy and it never happens. so upper bay bridge and i want to report. those miners that work at massey are scared to death and intimidated and run like it was 1921 not the present day. that is the truth. don't take my word only for

the miners but the communities are intimidated prick of the people of west virginia have had enough and they're about ready to stand up and take a position. but my position when you talk about criminal prosecution , now is the time because people who knew this was going on, no question in my mine to the people at the very top and the board of directors was in discounted shape, the owner of this company and president ceo does not live 1,000 miles away but louis in the coal fields every single day and fear and intimidation is the role. let me tell you we have to understand when we have people like this and we should own the federal government but unless they tell you, a company can be allowed to put people in this kind of a position? congress should stand up and take a position we will not tolerate this.

this is the united states of america prefer not china or columbia but u.s.a.. the mother a letter. 25 years old road to his mother and fiancee a letter and the young baby who might happen to meet on sunday and said if i die in a coal mine please tell everybody that i love them as direct that is used to write and that is the kind devil others and the letters not the time they're supposed to eat thank you back to work for the united states of america. domain mentioned some of that the president obama is sinned for the first time in the history of this country price of it to you. you can hold accountable if you should but it will not

be long before they say he is too tough on us. i am putting you on notice that is what will happen because he will enforce the law and msha will force the lot and coal miners will be safe. today i am sending of letter to hilda solis is time for a seventh public hearing on this situation because they do have subpoena power. >> anything to do with his strategy -- tragedy spin a but what happened in private? >> those that were the most effective, things of powers can be issued i know i am emotional and have gone over my time. but i would like to invite all of view, this is the worst days not the worse

they have there are three others in worse shape and is. i am sorry i got carried away. i must tell you how i feel about this. thank you. . .

and what really concerns me with the panel i want to appreciate it ready for being here and the families and i really sickened by what this went on and the reason i say what i say is i worked at the mines and the ones i worked at they would take until they got the right one -- the new detectors and everything read memory and they wouldn't turn them in. but when i first went to work everyone told me about it and i said no it can't be that bad i

went there and worked at the big branch lines when the inspector would shut the minds, i went to work for. when they would shut them down but transfers to the different minds didn't matter if you worked there or not that is where you to go on, you had to live out of your car. when to the big branch lines never knowing nothing about the mines went into the minds and they would never give you a safety measure. he went up on this section and the first thing it said is that is york machine. if you went to the roof over the first thing they would do is turning the ventilation curtains down to event lead and i heard senator rockefeller talking about the degree and stuff that creates the explosion. when an inspector which wampum the property they would shut the section down. they would drop down and get the

debris away that could be an explosion. as soon as the inspector would leave the property that to get back down and start mining coal and it's impossible for you to negative 600 come 700 of coal and and and our period at a coal mine and do it right. i worked in a union mines. we try to do everything right. and we do everything right. the company wanted to do everything right and it's just not -- it's not fair to the minors and let's say i worked there and talked to those guys and i am not telling you what someone told me and i try to get these guys to understand we need to stand up and you know what they said? if you won't like you get out of here because if we stand up, we all are fired. and that is the way that they operate. i worked on july couldn't take it no more. my wife would worry to death and i fear for my safety the whole time i worked for them and i quit. i said i would starve to death

first. and it's not right for a person or a human being to have to go to work under those types of pressures and to the job. it's not right. have people have gotten hurt. they will let you come to work from filing an accident report they would put you on life to be and what to stay in the bath house to keep from filing an accident report so we would go against the mines. it's so much we don't have enough time to tell it all. but it's not fair. this is america. we shouldn't have to live like that. on my committee of the lines where i worked on the safety committee and i have as much -- i can tell them to shut the mine section down if something isn't right and we are going to fix it. the man there don't have the

right. it's not right spirit >> thank you. a very powerful statement. that's why is always good to have someone like you who is out there to get their hands dirty and goes into the mines and can tell us what it is really like. mr. addington. >> chairman harkin, members of the committee, thank you for allowing me to speak today regarding the health and safety of america's miners. negative west addington and i am an attorney at the law center. and nonprofit law firm that represents miners and their families on the safety and health issues. at the center i operate the safety project that works to improve safety conditions for the miners in the coal fields. premier li the minds if the project represents the miners that suffer workplace discrimination for making protective safety complaints. unfortunately, i am before you today following a mine explosion west virginia that claimed the lives of 29 miners.

massey disaster now becomes synonymous with death and the coal mines like the recent disasters before it. crandall canyon, darbee, and sago. it's not only a crisis is a natural this case. my father was a kentucky coal miner and the father before him and all four of my great-grandfather's were miners. congress is opening declaration in the act of 1977 the the first priority and concern following the coal or other mining industry must be the health and safety of its most precious resource, the miner. however moving forward the miners also be our most precious resource in any strategy to improve mining safety in america and prevent future disasters. the miners best know the conditions present in their minds more so than even the inspectors or operators. miners watzman can provide

invaluable information to federal regulators working to ensure the protection. chris realized long ago that the mine safety were generally improve to the extent miners themselves are aware of mining hazards and play an integral part in the enforcement of the mine safety and health standards. we have to reach the point in this country that the miners without hesitation report unsafe conditions. however, are the recent mine disasters and scores of individual mining facilities show this is not happening frequently enough. unfortunately, in too many mines miners the complete about unsafe conditions are harassed interfered with or even discharged. many miners feel those who complete are also part of our protected to the degree envisioned under the mine act. understandably then, an experienced and skilled call miner often quite a bad situation and find a new job elsewhere rather than asked the state mining and force the agency to investigate and remedy the unsafe conditions.

thus the federal government has to do a better job of publicizing the miners' safety rights and increasing their support of the miners to exercise the rights. i know my time is limited here but i would like to point the committee to my other topics of interest that i plan on talking about today which is increasing the frequency and quality of training of miners' safety rights and full-year on violation notice. what i would like to talk about really briefly is representatives of miners. representatives of miners are working miners selected by at least two others to represent them in safety and health matters at the mine. miners are granted a special rights under the federal law which are designed to encourage active participation in the enforcement of mandatory health and safety standards and to keep their co-workers apprised of issues that might affect the safety and health.

the of the right to a company inspectors during the inspection of the mine for the purpose of aiding such inspection and to participate and pre-and post conferences of the mind. they also have the right to receive a free copy of any order, citation, notice of decision that is given to the mind of the raider. yet with all of the inherent safety and it hinges of the rights system offers to the miners is shockingly underutilized. the freedom of information act response revealed in 2008 more than 90% of 249 call negative in eastern kentucky district number six didn't have one miner representative. only four of the 249 had miners represented. one reason for the lack of the miners reps is miners are often interfered with order fleeced discouraged by the operator that they show an interest in becoming. one of the current clients was discharged from becoming a representative in his mind.

the interest to devote special attention toward increasing the number of miners reps and i would encourage congress to consider a change in the law to require on every shift and every line to aid to ensure the substantial safety protections gained through the system. thank you. >> thank you, mr. addington for the selection. we will get it seriously. mr. watson. -- before, mr. chairman for the opportunity. before turning to the topic of this hearing, let me again expressed condolences of the entire mining communities to the families of those who tragically lost their lives of the upper break to the cadet branch lines to recover thoughts and prayers are with all of those touched in this tragedy and our heartfelt thanks goes to the rescue team members who worked so tirelessly to recover their full negative 3i come to assure you we will join with you to find out what happened at the mine and why it happened. we do not accept that the mining

tragedies are inevitable. we join with others here today to ensure that from the tragedy will emerge stronger resolve to do better. what we have tried so hard to do well. the understand the significance of the challenge we face to bring all miners home safely from their important work. this is the responsibility that we to all of those that work in the minds and we owe those the parish of the upper branch line. my safety is an operator's obligation and must be the highest priority but both operators should have a shared responsibility to ensure safe workplace. it is this shared responsibility that led to the dramatic improvement of the last two years where we achieved all time historic lows in terms of the number of miners who lost their lives. still too many of the record was improving. several scenes have emerged since the events of april 5th and i would like to address three the the most relevant to this hearing.

first is the question of the adequacy of enforcement authority provided in the mine act, the quality of workplace inspections and the appropriate application of a full range of enforcement authority provided in the law. second is the backlog of the cases pending before the review commission and whether these appeals jeopardize miner's safety and health by preventing speed from additional sanctions against operators. and third, whether the new laws or regulations are necessary to create a culture of prevention across the industry. turning to the first issue attached to my written statement as an analysis demonstrating how the enforcement authority under the mine act goes well beyond the enforcement authority provided osha. mines are subject to mandatory inspections. inspectors have warrantless entry authority. authority to withdraw miners from any area for failure to cite conditions for failure to

comply with mandatory standards and when an eminent danger is present. the enforcement powers under the act or extensive. the need to be used when conditions warrant rather than broad lease supplement it. the second issue is the backlog of cases before the review commission. we support efforts to eliminate the backlog. its continuation does not serve the interest of miners north mine operators. we want to assure you that we are ready to take the steps now to correct what all agree is a dysfunctional citation and appeals process. unlike under osha, and appeal under the act does not required to correct the alleged violation. the at the first and contest leader role of the act imposes immediate and substantial obligations on operators to eliminate what they're valid or not to proceed hazard that gave rise to the condition under which the citations issued.

some believe the ' results from a deliberate attempt by some operators to quote the adjudicatory system to prevent the agency from placing a mine on the pattern cycle even if one were to accept this there is without question the ability of the agency to take additional enforcement actions. the imminent danger authority which was discussed earlier is available and on like the pattern of 40 it doesn't require even the finding of a violation of a mandatory standard. it is far more powerful than the pattern tool but is infrequently used msha also has authority. the fact is congress did not limit the speed enforcement authorities. the tools are sufficient when properly used. the final point is what we need to do to create a culture of safety across the entire industry. a culture of prevention across the industry and our view of the strategies for improving

performance must change. last year 86% of the mines in the industry work the entire year without a loss accident. enforcement contributed to this record. it's necessary that in and of itself is not sufficient. we need to place renewed emphasis on the risk-based safety performance through programs that share the best of the best and safety performance with the entire industry. these are vital components of an effective safety effort that go beyond regulatory enforcement authority. to perform the year after year recognize the need to go beyond mere conformity with full law. the understand the regulations alone aren't sufficient to bring about continued improvement. it's time for all of us to recognize culture, leadership, training and other organizational behavioral factors influence performance. to the extent they fall short, regulators provide a needed and necessary safety net.

regulators and mine operators must stand apart but an adversarial relationship not be a hostile relationship as we seek better ways to improve miner safety. thank you, mr. chairman. >> thank you free much, mr. watzman. before we start a round of questions still people here had photographs of their loved ones who i think lost their lives either in the last even or maybe some previous. you've been very kind to come here. hold up those pictures so we can see who these people are comedies real human beings. hold them up for us. are these all people who lost their lives in upper big branch? others? thank you for being here and for

bringing those pictures. mr. watzman, let me start with you. you point out in your in to the eckert is the money that speed had the authority to withdraw on the spot of the sea imminent danger. that sounds all good doesn't it? sounds good but it it depends on the inspector being there to the right place at exactly the right time to prevent. well, how can you do that? you can depend on that. it seems to me someone has to be at the right place at the right time to prevent an imminent disaster. so it seems we need to be more effectively after the ability to more effectively target the operators that have a pattern who routinely -- who routinely put their orders at risk to stop them before they become an emineth representative. i do disagree with your suggestion that the eminent with straw authority that accomplishes the same result as the speed's pattern of a

violation authority. in february of a hearing before the committee on health and education lubber use it in a cultic pattern of violation is in the law for a very valid reason. it is there for a valid reason. it's just that it's not been used and there are probably some legislative things that we need to address, mr. rockefeller, and making sure that pattern can be used more effectively. we have to quit letting people gain the system as they do right now with these patterns of violation that go on year after year after year and they never have to do anything because they never get a final adjudication. they never get that final adjudication and that is how the game the system. so while the and in danger can be used it just seems to me that it's not practical to have someone there at exactly the right place at the right time. >> mr. chairman you are right and expect it can't be at the mine every moment negative operating nor can they be in

every location in the mind and there are several factors that come into play. one of the things in the title for this hearing is changing the culture within the industry, changing the culture across the industry and that is an important element. but there are additional authorities. the assistance secretary was entered into a dialogue with several of your earlier adopt the injunctive relief authority. they don't have to wait for the pattern. but not -- the agency today does not have to wait for the adjudicatory process. my point is pattern is an important tool and i am not trying to minimize the significance of that tool. but what i am trying to press upon you as there are other tools that exist today while we continue to work through this backlog that troubles all of us. >> changing the culture, is that what you said? i don't think mr. harris's culture needs to be changed

although the workers that work with him, i don't just mean mr. roberts and the other miners families out here. i've been around call miners most of my life. they work hard. these are hard-working people. and they want to work. they know they are providing the energy to run america. they want to take care of their families. some of them want their kids to grow up to be lawyers for senators, i don't think my dad never wanted me to be one of these. [laughter] but nonetheless. and they care deeply about their fellow workers and their health and their welfare. so it seems that the culture that we are talking about changing happens to be at the employer level; is that what you're talking about? >> the culture needs to be changed across the entirety of the industry, and there are many factors that come into play when you are talking about culture. it has to stop from the top down, clearly, and that is recognized across organizations,

be they in mining or outside of mining. the leadership comes from the top down, and that sets the message for the entire organization. but those are some of the things we are trying to do across the industry voluntarily to take, and it was discussed earlier take the best of the best. there are companies out there that perform year in and year out without lost time accidents. we are trying to determine and share what they do and why they are able to accomplish that and make sure that the entirety of the industry has the benefit of that. >> mr. roberts, your observation on changing the culture and of the disalle there are some miners, some mining organizations that as you have pointed out of great good lines. >> we don't need to change the culture of the entire industry because most ceos that i know, most presidents of the companies that on no would never have tolerated what has been going on at the upper big branch line and some of these others. they would have fired people. they would have sent people

themselves. i give you -- caused her name because she didn't ask her into the cold play of ceos that call me that has their name on one of the minds as a potential pattern here. cecil, i don't know what's going on there. they call me. i say i'm going to find out. he thought i had leadership there i could depend on the that is the case they would be gone. and i'm telling you, i'm going to fix this. , that is the ceo of the company telling me they are going to fix this pattern of the violation. we are on the list for a potential. 95% of this industry -- and this is a statement from me on the other end here -- you don't have a problem like this. but we have a serious problem here with about 5% of this industry who do not care what laws you pass. they don't care who use and to enforce it. they are going to fight this day in and day out, and we have got to come to grips with this and fix it.

>> senator enzi. >> thank you, mr. chairman. i appreciate you holding this hearing which is called creating a culture of compliance, and that is what we are trying -- trying to do. mr. addington, i'm sure that you are aware that msha has for a long time had an anonymous reporting system for reporting hazards where anybody can use an 800 number or finally report online, and as the web page says in bold letters, they all need to identify themselves. in your experience with miners are they aware of this anonymous reporting system? edni of the employees to work with try to use the system and what was the result? >> yes and no. enough miners are not aware. probably there are statutory safety rights under the act including the 800 number. the problem -- it is a nice

function the can anonymously make a complete to get the problem in reality is depending on what the complaining about it is not very hard to figure out of the mining site who made the complaint. if they are complaining about the bill let might be the building examiner they look for first and, you know, and number of the clients that we represent any more when they make complaints to make sure their name is on it because they have more protection under the law and they feel that way. so you know in theory it is a good function and in certain cases it is essential because miners can be protected using the 800 number but in other instances just as well is better off making the complaint out in the open. >> thank you. that is helpful mr. watzman, since 2006 glesby's budgets increased faster than the miners act, increased by 36% and msha has higher over 100 new coal

inspectors. that is due to the increased resources msha was able to complete 100% of the such tour the required inspections in 2008 and 2009 for the first time. why do you think msha was not able to properly follow on the clearly concerning record of the upper break to the cadet branch line? does msha need more flexibility to focus on bad actors? >> senator, i can't speculate to a thought process on the agency and the actions they chose to take or did not choose to take. what we know is there are mines in the country given the size and the requirement that msha must inspect every underground mine in its entirety four times a year and there is a misperception that four times a year means an inspector is four days a year. there are mines in the country that the quarterly inspection begins the first day of the quarter and the closeout is the last day of the quarter and they roll into the next inspection so

there are mines in the country where there is an inspector in the line every the line is operating. i won't tell you that is the pool because it is not that there are many mines where that occurs. so it is, you know, rather i would like to leave you with that thought rather than try to speculate on why msha did or did not take follow-up actions based upon the information they had available to them. >> and i noted that the upper big branch line had inspectors on 180 days in the last year. it wasn't every day but that was pretty significant. so, when a msha inspector identifies and issues a citation, is there any way for the operator to avoid the hazard? >> under the law of the operator has to abate the hazard and the citation is an abatement time. often times it is by the end of the shift. maybe by the end of that day depending upon the conditions they found. it may be an extended abatement period, and the inspector may

extend the abatement program beyond that originally set if it requires a technological and out onto a piece of equipment or something of that nature. but there is a fixed requirement for them to update the citation long before this adjudicatory process takes place that we discussed earlier before the review commission. >> as contesting get get them out from having to the date it? >> no. >> thank you. i'm over my time. >> senator rockefeller. -- before, mr. chairman. i'm really glad, mr. addington, that you said what you did about if somebody calls the 1-800-number which is not the culture of southern west virginia or most of west virginia. we don't spend a lot of time calling 1-800-number's because the assumption is that thing is going to happen but the most important and use it is the countries where the phone call came from. the intelligence committee, you don't have to be an nsa or the

cia to know that is a very easy thing to do. so, making the phone call is in fact not reporting the danger. it's putting your own job in danger. that is what it comes down to for me to ring and i would like to say to mr. watzman coming to where the head of a very large corporation. i think our president roberts said about 86% of the coal operators that operate in the mines -- look-see 6% -- to a good job. i've had the same phone calls that you have to read people who are on that list but don't want to be on the lesser shocked and they want to do something about it. on the other hand there are some that don't that proud -- proudly flaunt that they built and

perhaps two hours of every day of every year to find out of how the safety a stream that how the production is coming along. i am talking fairly specific here. why is it that you haven't stood up in this association? i have so many operators coming to me disavowing any relationship with this particular company which is in fact involved in all of the recent, aracoma, sago, all of them. why is it that part of your responsibility is and to come from those people, you're association's responsibility is to confront those people singing you are giving all of us a bad name or why is it that you wouldn't accept the idea that the board of directors should be brought in? because sometimes the personality of a ceo, president and ceo can overwhelm the presence of a board because they are well paid and they don't

have the same responsibility. maybe we ought to have something where the board members have to go down a mine two or three times a year. maybe we ought to have something like this the director of that mine has to appear in the sec report that the submit. the safety record in the mind. >> that would have to apply to all industries. no industry is like the coal industry in terms of danger and in terms of remoteness and intimidation. and it to you, mr. harris, no i won't make this to you because you've already done so eloquent. to you, mr. roberts, intimidation to me is the bottom of so much of this, and it's not totally proven but it is an utter fact. i have heard so much of a in these last 40 years working with

this problem there for you have to get at intimidation. you can't get intimidation through the rules and regulation through the wall that we passed. that is the culture of the minds i think that you and i are talking about. how do you respond to that? >> there's a couple things i would suggest we might want to think about. first of all, the law says any miner who feels he or she is in danger has a right legally to withdraw from that particular area. that does not have been in the minds because of fear of being fired and so you lose the job you have and get another job at massey if you exercise the right. the second thing is if you call this 1-800 number and they find out as mr. addington said so eloquently they are afraid they will get fired for that. so i think if i were to

encourage you to think about something right now i would for the criminal penalties on any mine operator who disciplines someone and i don't mean somebody just didn't want to work, if some one legitimately thought they were in danger no one should be forced to work in that condition. no one should be fired for calling someone and say i think this line is going to explode. there are stories here now and people have come to us and i sure that they have come to that said there were grown men crying afraid this man was when to explode in the mining industry for years. we should be embarrassed, in particular for what i do and all others to say in america that shouldn't happen. we should put some one in jail but there it is a section or mine for more or owner of a company who allows something like that to happen we need to get some help power to the workers to say if i call speed

i'm not wait to get fired because the boss is going to jail if he fires me and my only that but the ceo is going to be going to jail if he fires me. you need to somehow convince these workers that the government of this country will stand up for them and can protect them. right now they don't believe it. >> thank you, mr. chairman. >> senator franken? >> i want to follow one something senator rockefeller said, mr. watzman. he said mine operators and safety must be the highest priority. and you said they must go beyond the mere conformity with the law. it sounds like from everything we have heard that massey had a reputation of not doing that to say the least.

why does the national mining association tolerate that? >> senter i don't think it is an issue of tolerating. i am not sure that there is much value and ostracizing an individual or an organization. what we would rather do and what we are trying to do as i said earlier is raise the performance of the entire industry through the sharing of best practices through the voluntary awareness programs that we've initiated through the new web site that we've created called safetyshare.org to make sure we can disseminate across the industry the best practices, the best of the best so we can bring that level of performance of and i am not sure that ostracizing that individual or an organization moves us in that direction. >> if that organization willfully defiance they are not going to respond to the new

waste web video on safety, massey obviously. i think that is silly frankly. mr. addington? i kind of said this is shocking this testimony to me that the mines continue to stay open and i say why can't you shut down the mine or part of a mine and they said well because of the federal mine safety and health review commission has made some rulings that made it harder to shut down. is that true in your experience? >> it is partly true in some respects has to the pattern of the violations i don't believe that is true. if you will look at section 104 and violations the statute as it was intended and if you look at the legislative history it was intended to be a hammer and

unfortunately they are implementing regulations in 1990 it was weakened and the internal criteria they are using now week ended even more. we've heard a couple of times during the hearing about potential pattern of violations. you will find that in the statute. it says nothing about potential pattern of the violations. if it is engaged in a pattern of violation getting notice. right now what's been happening is they get a warning they might eventually get a notice and then the criteria for getting off of that warning is relatively easy compared to what it takes to get on the warning. so we are in the current state your talking about years before you can get a pattern of violation of notice. >> i think we have to examine what we can do legally to make sure that the mines are clearly

not save or shut down. thank you. >> thank you, mr. chairman. >> i might respond if i might on that is that let's say a miner sees potential safety violations that if it reports would shut the down. they don't get paid. right away you've got the conflict. shall i report? you should it down and me and my workers are out of work and out of pay. so i can understand the conflict that would accrue that a miner might feel in that kind of situation. senator casey. >> mr. chairman, thank you. ranking member enzi for calling this hearing we are grateful to have senator rockefeller. first i want to express personal condolences for all of those who lost someone in this tragedy. no words of condolence or sorrow

can match their grief that so many people feel. but it's important we have hearings like this and others to change the policy and to try to do our best to be responsive to this tragedy. i growth in a region of pennsylvania which for decades more than one generation was the capitol site call of the world and i have a very limited sense based upon some readings and family history and things like that fleeting glimpse of what it's like to work in a mine and have a family member to this. a lot of us come to these issues with a degree of humility that we should acknowledge. there is an essay written by stephen just before the turn of

the last century about a mine near my home town of scranton. a beautiful essay about all of the ways you could die in that negative, all of the darkness and danger is only a great writer like he could express and he talked about at one point in the essay he talks about 100 perils winning the 100 different ways you could die in the mine. but even with all of the modern technology and advancement side of think any of us could even imagine this kind of tragedy happening today. so we have to if it means changing policy we have to do that and if it means adjusting we've got to do that. and i apologize for being late and maybe not being able to stay for the next panel but i did want to ask a kind of fundamental basic question and that is on the minds of all the fuss and they have been answered

15 times already but repetition around here is a good thing and that is the basic fundamental question i have is based upon the experience of the table from the witness is and we are grateful for your presence and your testimony what does the united states senate and i will leave the house committee of their own work to do but what should the united states senate do and the have fenestration do in the next six months to make sure this kind of tragedy doesn't happen or that we substantially reduce the likelihood that something like this would happen again and i start with mr. roberts. i've known him over the years and i'm grateful for your leadership on these issues on behalf of the working men and women. >> thank you. there are a number of things i would suggest in my testimony. one is dealing with the backlog

styx's that the review commission. there is not only a disincentive that doesn't exist, there is an incentive to do with every one of these funds because if you look at the record you get authority some% reduction on the appeal so if you get cited for a million dollars and want an appeal before as oliver you end up paying half of that were less. by way of an example that hasn't come out here by the way over a million dollars in fines at the upper the branch the paid 100 some thousand dollars so the rest of the venegas is still sitting somewhere in infield process. we argue there is no reason why the fines shouldn't be paid immediately and held in escrow if they want to appeal that way they do not get the benefit of that money in their pockets and encourage them to do this.

i would point the panel back to 1977 and what this congress wrote that the fines should be paid in close proximity that time they were issued because that congress understood the failure to do that would lead to something similar to what we have currently. we would argue to pay those funds quickly. the second thing we would argue it think this whole pattern of the violation has been kicked around here pretty good. it is an absolute failure the way that it works right now. what should happen as while if you are appealing the cases, the defiance and if indeed you have been issued these penalties i think it is time for msha to take a close look at you even though you are appealing this because it may be too late as was the case at upper big branch while all of this is an appeal we are trying to get to some magical point in our lives here to say yes that mine should be shut down. i think if indeed there has been this many penalties issued then

i think we take the steps to say all right, the district manager needs to send more inspectors, more frequently and to the line because there is something wrong here. just because you haven't gotten to the final day where some appeal process says you have to pay these finds it is too late for the miners. they came to the system here and i've mentioned that in my testimony and you know there will be someone that argues we don't really need the law or whatever and i would point out and i said this in the beginning had all been obeid we wouldn't have had this explosion and 29 miners losing their life. however, i would point out a good laws work. we just recently celebrated the 40th anniversary of the 1969 coal mine health and safety act. it became effective in january of 1970. just something for you to think

about. 40 years prior to the fact 32,000 miners lost their lives. over 32,000. 40 years after, 3200. so those who say that the laws don't work that isn't true. those who say let's do away with the laws and the about the business of doing whatever we want, that is what we did 40 years before we passed the 69 act and it didn't work. i have a lot of ideas about this and i live like to get to the other panel members. >> senator rockefeller wanted to make one more comment and i just have a question for mr. -- speaks before, mr. chairman. we've been talking about the culture and i think it's important to point out i would say 90% of west virginians, of pennsylvanians, of ohioans,

wyoming-ites -- what people love to understand this isn't just a public place we are talking about, this is 35 minutes, 45 minutes of a beautiful love lease stream and things and then all of a sudden you come to this enormous montana. it is a private life. decisions are made by very few, and the effects are very many. the miners are put in an impossible cultural position. because if they get offered payment of 65 for $70,000, what are they going to do? are they going to say no? not interested? that's not the works. and the families said the obligation to the family. they've got to survive and take care of their families as well

as keep the lights on in america. so, it isn't really a choice for them in this culture. to me the culture has to stop from the top and i am going to give you an example and i will be short, mr. chairman, as i always am. [laughter] i was governor of eight years in west virginia and we were having unacceptably high death rates in the minds. i decided that as the chief executive, that is the ceo, that i would go to each of the minds with mine inspectors and and would gather after had been a death. that had never happened again. they're also was sitting as they were explaining to each other what happened or who should have done what. things happened. everything was different because the culture change took place at the top. i'm not saying that i changed the world but it did have an

affect and that is why in a secret world at the end of 35 miles apart driving and then 1,000 to 2,000 feet underground, with only a few people from that state or from any state had ever been it has to come from the top. it has to come from the top. >> mr. chairman, related to that, i have been down in an underground mine but i know most people have not. >> because we are centers. specter is a fellow from wv i don't know if he's still there but his verso mur hickman who has written some great books that give an understanding of right after 2001 he wrote a book called "we are not afraid," which talks about the culture of the miners as well as perhaps the way that americans ought to view the terrorism attacks that we have had but he also has a book called "the ret helmand," it even gets into some accidents. i would recommend those to people that haven't been in the

mine. thank you. sprick listening to everybody i've been respectful, not trying to interfere in all the questions and using the comments and i keep on thinking what does harris have to say about this? the guy that toledo's in the minds and works in those mines, do you have any last things you want to say here? >> yes, i really believe those people that died didn't have to die. it didn't have to happen. it could have been avoided. that's what i like about being in a union mine. if you have representation all time. you don't have to be scared to call that 1-800-number. you don't have to have that fear. and the coal operators, they want to get the work done safely. they want you to go home safely. they want you to return to your family. you don't have that in the nonunion mines.

i have had inspectors who have told me the have asked for representation, some of the men that walk with them say no because we will get fired if we do. you shouldn't have to live like that and to be on this side of it is worth it because you have a voice and if they're going to shut the mines down they are going to shut the minds down. it doesn't matter what you say or do. if you're going to shut the line down you were going to do it any way. you know. during the later but often a way so it doesn't matter you do so much more that he's going to lay you off. he doesn't care about you. all he cares about is the coal and the money. he wants to be the lead coal producer in southern appalachians and as long as he can do that he doesn't care about anybody. that is all i have to say. >> mr. harris, i think it is a great final word. >> thank you for the panel and now we will bring the next panel

lot. >> panel number three. [inaudible conversations] david michaels, dr. michaels is assistant secretary of labor for occupational safety and health, nationally recognized leader in the scientific community efforts to protect the integrity of the science that forms the basis of the public health environmental and regulatory policies. before coming to osha he was professor of environmental and occupational health assistant at george washington university school public health and health services. in 1998 to 2001 dr. michael served as assistant secretary of energy for environmental safety and health. mr. michaels, just along here second until we can get some calmness restored here.

[inaudible conversations] we are now shifting over to osha. i might say parenthetically that this panel and the next panel now are going to be shifting from msha to osha and focusing on the occupational safety and health program. [inaudible conversations] >> could we please take the conversations out in the hall. if you need to appreciate that. we really do have to move along here.

okay. mr. michaels, welcome to the committee. your statement will be made a part of the eckert events in tire if you could sum it up in five minutes we would appreciate that. mr. michaels, welcome. >> thank you, german harkin, ranking member in the and members of the committee. today we are meeting under the shallow to the recent tragedy that captured the hearts and mind of the american people. the almost untouchable death of 29 miners in west virginia, the loss of refinery workers in washington state and the 11 workers still missing from the deep water horizon. what we are also hearing in the knowledge as 14 americans field to come home from work to their families every single day of the year. we must think seriously to ensure that osha has the tools it needs to enforce the safe working conditions. if we are to fulfil secretary of labor balsillie's vision of good jobs for every one we must that detective laws that will insure all americans to the right thing to get good jobs or save jobs but an american worker still face is unacceptable hazards.

yesterday the labor department released its spring regulatory agenda which includes a new enforcement strategy plan to prevent and protect. this approach would require each impleader to do what many employees do now to implement their only injury and illness prevention program tailored to the actual hazards of the employer's workplace. we're asking them to find and fix their hazards. last week we announced a new initiative to implement long overdue administrative changes to the penalty formulas which would have the effect of raising the osha penalties while maintaining the policy of resisting penalties for small employers and those acting in good faith. and we will implement the severe violator enforcement program increasing doubt focus on repeatedly recalcitrant employers. while important these administrative measures are severely limited by the constraints of the current osha law. the administration supports the protecting america's workers at, pawa, which is meaningful and substantial changes to the osha

structure and enforcement program. the most serious obstacle to effective enforcement is the low level of civil pelmets allowed under the law as long as the weak criminal sanctions currently, the penalty for the serious violation, those that pose substantial probability of death or serious physical harm is only $7,000. osha penalties have not been raised since 1990. pawa indexes to the consumer price index to ensure that a penalty structure is not degraded over time. it is a sad truth for some irresponsible employers nothing focuses attention like the possibility of going to prison. currently successful criminal prosecution under the osha naftali results and a misdemeanor under pawa. another obstacle to protecting workers is that now if the employee contests violation osha cannot force the employer to fix the house until after the contest is decided. the loophole has fatal

consequences. osha has identified at least 30 cases the last ten years in which workers have been killed during the period after the citation was filed. pawa would require employees to abate hazards after the citation is issued. we know that osha works better if they're actively involved in the sell health and safety but they would be against participating in fixing the health activities and not likely to do so. osha's provisions are 40-years-old and lack far behind similar provisions in the law and provide stronger worker protections you have been enacted with strong bipartisan support. pawa provides workers with a private read adoption. it is critically important that the employee fills to comply with the relief both dol can identify the action to but they refuse unsafe work and private employer retaliation against employees reporting injuries or

illnesses. osha recognizes the importance of family persecution. while it is the osha policy to talk to the families during the investigation process and to inform them about the citation procedures and so much, the policy has always been implemented consistently and in a timely manner. pawa please enter all law the right of a victim member to meet with pawa and receive the citation of the same time the employer at no cost. speeder cuba also enable the victims to be informed of any notice of contest and to make a statement before the agreement is made to restore or multiply the citation. finally, it is a little-known fact that the local employees to respond to the emergency repair the highways wastewater pick up the garbage, take care of the mentally ill and provide social services and staff the presence the are not covered by osha ellis the state which they work chooses to do so in only 25 states have elected to do so. public-sector workers perform work that is as dangerous as those in the private sector and

according to the bureau of labor statistics the high your injury rate than the private sector workers. public employees deserve to be safe on the job. treen public employees as second-class citizens must come to an end. mr. chairman, as we prepare to observe the worker's memorial day tomorrow we realize that our work is far from don. to quote from president obama statement in the wake of the upper bay branch mine disaster, we owe it to all of the workers' action committee with an accountability and assurance that when they go to work every day they are not alone. they ought to know behind them is a government that is looking out for their safety. i join with you come mr. chairman did a kidding ourselves to bring it up the day there will be no more workers memorialist for body on the job. thank you for the opportunity to testify. >> michael, thank you for your testimony. i've read the written testimony last night and i thought maybe we were talking to the eckert talking about these exhibits here and the one i mentioned in my opening statement defines

penalties both civil and criminal or tougher on environmental lobbies than they are on the workers' safety. in the testimony you plan of the 2001 social security to the to -- acid that exploded in the refinery in delaware. geoff davis, a worker, his body was literally dissolved in the acid. the osha penalty was $175,000. yet in the same incident thousands of dead fish and crabs were discovered along an epa clean water act violation amounting to $10 million. how can we tell geoff davis's wife and their children the penalty for killing fish and crabs is many times higher than the penalty for killing a husband and father? >> and these things cry out to do something and we have got to make the necessary changes. and that is what we look to you

for is your suggestions and advice on how we change these. right now we just heard from msha. i think you were hearing all of that. they have the authority to order the withdrawal of miners from an area until they have abatement. they can shut down a mine but we know that doesn't happen that often. yet osha cannot immediately shut down the process of removing workers from harm until the hazard is correct. is this correct? >> yes, sir if a osha inspector is in the facility and we see a hazard dangers to facilities we can certainly ask an employer to shut down but we can't required. we have to go to court to do that. sprick even though there may be imminent danger? >> yes, sir. >> do you have any device for any suggestions for the legislative change? >> i certainly would like to see that changed. i think that is an extremely

important change. msha has the ability to be getting the report not even beyond the site best to make a phone call and say shut that down until we are right and we certainly can't do that. the osha law is very weak and it hasn't been amended since any substantive way since 1970. >> as a former member of the house representing a very rural district of iowa and as a senator representing a lot of small towns and communities, over the years i have heard story after story of osha inspectors coming out and nitpicking on something they find some little thing and we kind of hear all of these horror stories, and some of them we've tried to track down. it's very hard to do. but address yourself to that. i sure you've been around long enough and have her all of this, blight

we only look at serious problems. 83% of our violations are serious violations, which means they threaten -- they can threaten death or serious harm on the worker involved. we all have time. >> tell me about -- quickly, my time is running out -- the severe violators enforcement

program. how does that differ from your enforcement? >> well, it's resheaped. we can certainly get you more information on this, but it really makes us focus on those where we found serious problems that we think are back, and they just go back in there on a regular basis and see what's going on there. we think it's something coming into effect now. i wasn't here for the previous program, but it's a good example. >> thank you. senator? >> thank you, mr. chairman. i helped get the post office under osha when i first got here. and call for inspections of my office on a regular basis. i know you're short of inspectors, so chances are that piss is only going to be inspected once every hundred years. and i suspect that the thousands of people that we'd have to hire in order to have a shorter period of time than that would create quite an

economic burden in this country. but there is a program that's working very well, and that's the volunteer participation program. where they volunteer safety experts to work as special government employees, and pretty extensive criteria for it ever to be recognized that way. just in personnel, but it also avoids serious injuries of probably $59 million worth in 007, not to mention, you know, the pain and agony that goes with that. so i think it's shown very

strong growth. i wanted to get it down into even medium sized businesses, not just the big businesses, but it does indicate some recognition that exmple are you work place safety and getting public relations value that's intangible in regard to spreading this core mission in making sure that people go home safe, again those factors, you believe that v.p.p. is worth preserving. >> yes, i do. >> when i was at the department of energy, i ran the v.p.p. program. i think the concern i've heard from your office is others is that we're shifting of resources around that. we think it's a very worthwhile program. we are very much focused, though, on those employers who are not good participants, the ones that really want to make a difference. the v.p.p. program are

employers, but they die every day on the job, and there are lots of employers who are irresponsible and don't care, so we're forced between choosing and putting our resources in those employers who want to do the right thing and those employers who don't. and so what we've done, we have to really focus on those increasing enforcement on employees who don't really understand this. we want the v.p.p. program to continue, but we'd like to work ourselves with your committee and with the association of v.p.p. companies, the vppa, in finding alternative means of funding for this program. we think it's a good program and we want to continue. >> looking at the budget, we're talking about $3.5 million in changing resources. >> somewhere in that ballpark. >> $3.5 million in federal safeties is savings. if you look at the injuries out in the private sector, that's about $300 million in savings

doesn't it seem leak we all want to extend that program and get more of the people that are good participants into that program so they're cutting down accidents, and then we can shift more of the resources and the inspection over to the bad accidents. >> i'm not sure where that figure comes from. i'd love to see that. i believe it's a useful program, and i believe the companies involved want to do the right thing, and we should encourage them and find ways to do that, but we really do have to focus on the small companies, the high hazard companies. v.p.p. is primarily large companies. only 6% of the employees covered in the v.p.p. program work as employers of less than 250 people. it's big employers who can afford to help us find some way to fund this program. >> and if we drop that, how much resources are going -- are we going to need to protect the ones who do a good job?

i'd be more interested in who's developing this new proceed wolf and who's been briefed on it and whether it will require new legislative authority and how long it will take to put the system in place and how we can work more with more of the good people so that you can really concentrate on the bad people. he have a bunch of additional questions, but i'll provide those in writing, especially since the vote's already started. >> it starts at 4:30, but i know senator murray has another piece to tend to, so i'm going to recognize senator murray before that. can you tell me how the federal osha program, like the petroleum refinery and national emphasis program, are conducted

in states like mine? >> well, yeah. we have a national emphasis program that focuses specifically on oil refineries, because we believe they're particularly dangerous facilities and had a number of terrible events. certainly in federal states, we take our experts in process safety management who understands refining and things like that, and we put them in to do inspections, and we're trying to cover every facility in the states that are federal states. we ask states to do the same thing, because understand the osha law, states must be at least as effective as the federal osha. fortunately washington state has a good osha system and has decided to recommend at a time what we do. so they have adopted -- >> but there is not any

requirements? >> in this case, there's no reerment. when this was put into effect, it will allowed to be volunteer on the parts of states, and certain states, a small number, have decided not to do that. we are quite concerned about that, and we are now re-evaluates whether -- we have a national program whether we should allow states to opt out of it because it's no longer a national program. we recently had a follow-up inspection at a facility in ohio. i'm sorry senator brown wasn't there. we fond a number of violations. we asked b.p. -- v.p. to abate those. when we went in, we had abated those, but we want to the other part of the facility, a very large refinery, and found they changed the same changes that we required in one part. we just issued more than $

million fine against them for exactly that problem. so we are extremely concerned about oil refineries and the possible catastrophic events associated with them. so we're going back into them and seeing what we can do. >> we know that it was creeth for 17 serious violations in april 2009, so this is a big concern, and i want to follow up with several other questions, but i wanted to ask you, before my time is up, in your testimony, in your written testimony, you explained that under current law, osha cannot develop a pattern of violations or cite an repeat violation if that employer has employees in multiple states. right? so if the original violation occurs in one of these 1 state planned states that administrator their own osha program, do you necessarily know that other states have violations as well? >> that's correct. we don't know and we can't use that information.

it's one of the many weaknesses of the law that we hope to address. >> what is the logic behind that? >> that's the way the law was written. >> well, this is a serious problem, because if a refinery is under a at a time-run osha plans, those violations don't add up in totality and people don't know about it. it seems we have to fix that. >> i know we have a vote, but he want you to know this is something i intend to pursue. >> thank you very much, senator. >> i'd like to see that. thank you.

>> there's a vote here now, so we'll recess for 10 minutes, go over and vote, and we'll take the next panel. and i would invite the panel to go ahead and take the table. holly shaw, michael brant. we'll be right back. p>p>p>a÷ @>

>> holly shaw is the instructional technology teacher at e.m. stanton school in philadelphia, where she has taught for 0 years. -- for 20 years. in september 002, holly's husband, scott shaw, lost his life while working on a dredging project in the river in philadelphia. since the incident, holly has been active helping others who have been affected by work place fatalities. she is the founder and chairperson of the tristate --

family support group. it's also active with the united support and memorial for work place fatalities, where she travels and advocates on behalf of families who have lost their loved ones to a work place fatality. dr. brant is a verdict feud high generalest and president-elect of the american hygienist association. more than 30 years of professional experience to risk management and business operations management, serving in highly technical and challenging leadership roles in the chemical industry, research and development manufacturing, and the nuclear and high hazard sector. he currently serves as technical chief of staff at los alamos national laboratory. and the manager at scotts liquid gold, a v.p.p. star

seethe. kelly is very active in region eight, assisting osha and serving as an s.g.e.? >> s.g.e. is a special government employee. i have been trained in a special class to assist osha on their v.p.p. audits. >> there you go, thank you. she's also very active in the v.p.p. participant association, serving as region eight chairperson and secretary on the national board of directors. and working in research and development group to help techniques prior to entering radioactive areas or prior to leaving radioactive areas, either one, i suppose, right? welcome to all of you, as before, your statements will be

made a part of the record in their entirety, i would appreciate it if you could each sum up in about five minutes. >> thank you very much. i appreciate the opportunity to testify today on making the safety and health of workers a higher priority and improving protection on the job. tomorrow, april 18, is workers memorial day, a day unions and others here and around the globe remember those who have been killed, injured, and diseased on the job. nearly four decades ago, after nearly four decades after the law was passed, we find that the promise of safe jobs for american workers is far from being fulfilled, and without question, while we made great progress, there are too many workers being killed, injured, and diseased on the job, and we are reminded of the terrible toll by the recent tragedies in west virginia, the refinery in washington state, and the last

week disaster off the louisiana coast. the majority of deaths could be prevented if protect and i have safety measures were followed. but the fact is that for too many employers, the safety is workers is secondary, taking a back seat to production. for some employers, there is a total and lay at any time disregard for workers, and worker safety and other worker protection are totally ignored. my testimony today will focus on the adequacies of safety and health law. that he wants the law that governs the safety and health for the majority of workers. it was one of the first safety and health laws that was enacted. it was right after the coal mine safety law in 1969 and part of a whole class of safety and environmental laws.

osha has very, very small changes. the act today is exactly as it was enacted and signed into law in 1970 and the simple fact is that it's out of date, and it is too weak to provide for violations and to protect workers from unnecessary injury and death. there are no regular inspections under the occupational safety and health act, and that the oversite of work place is exceedingly rare. a down lode the federal

government has the capacity to inspect about once every 137 years. one thing that's important to note is osha's capacity is less than in 1980. they had 450 more inspectors in 1980 than 0 years later, even though the work place is 40% bigger, so we are paying the kind of priority in giving safety and health the kind of emphasis it needs. as we heard earlier from dr. david michaels, the penalties under the occupational safety and health act are exceedingly low, particularly for a serious violation. we find that not only the maximum penalties are hardly ever assessed. the average serious penalty for an osha violation last year under federal osha was $965. the meants are appallingly weak -- the penalties are appallingly weak, even in cases where workers are killed. we did analysis of osha fatality inspections, and we found that last year in the

united states, the median penalty, the typical penalty in a worker death, was $5,000. that's it. $5,000 when a worker was killed. and that these penalties vary widely from state to state. in utah, it was only 1,250. in your state, senator harkin, the median penalty was $3,000. so these penalties per death often are in very serious situations, they are from very serious, well recognized hazards. the criminal penalties are even weaker under the osha act. the maximum penalty for worker death for a willful violation is six months in jail. since osha was enacted, only 79 cases have been prosecuted under the act with defendants serving a total of 89 months in

jail. during this time, there was 360,000 work place fatalities. by comparison under e.p.a. and environmental laws, there were 387 criminal enforcement cases nearby ate, en had defendants charged, resulting in 76 years of jail time in just one year. so there is a weak innocence the laws designed to protect or workers. so it is clear, 40 years after the enactment of the law, that it is time to move forward and to strengthen the protection that is we provide workers in this country. we need to take action to prevent these tragedies from occurring. and i would urge and advocate that the committee strengthen the health act and start moving on this by taking out the protecting american workers

act, legislation introduced by senator kennedy before his death. this would address many of the dwsh as in the current law by extending coverage to workers who aren't coverage, strengthening penalties, and providing workers stronger rights. and just to conclude to look carefully at the dwesh as in this law. consider the testimony of those joining me today, and then to move, move forward and strengthen the optional safety and health act to give workers in this country the protection they deserve. thank you. >> thank you. miss shaw, welcome to the committee. chairman harkin, thank you for allowing me the honor to speak with you. i lost my husband to a work place accident. he was killed on the job. he was too young, and it should not have happened. scott shaw celebrated his 38th

birthday on july 13, 2002. scott and i celebrated our ninth wedding anniversary on august 14, 2002. our son, nicholas, celebrated his third birthday on september 12, 200 . his daddy wasn't there. his daddy died five days before on september 7 when he fell into the river. scott fell off the barge. there were only two other employees. a co-worker of scott told me scott was walking from one barge to another to get oil. he was missed after several minutes, and his hat was discovered floating in the water. scott's body was found two days later. scott wasn't wearing a life jacket that day. he wasn't required by his company to wear one. no one from the company checked to make sure their workers had life jackets. there was no life preservers on the barge. when scott walked from one barge to another, he navigated old tires that were attached

between the barges. they were uneven and not strdy. barges themselves were not the same height, so the tires were fastened at an acute angle. this is how employees traveled between the barges. no one saw scott go into the water. i like to think he hit his head and dent know what happened. he was 6'3", he was handsome, he was strong, and he was an excellent swimmer. this was not the first time scott had fallen off the barge. i can remember two times that scott came home soaking wet, complaining he'd fallen in. the company should have known then there was a problem. scott's death was needless. the company scott was working for elected to follow safety regulations. osha completed an investigation into scott's death and found the committee had -- the company had committed four serious violations and they were fined $4,950. the employees weren't checked.

for this, the company was fined $,000. the second violation was because the company did not have life preserve he is on the barge. scott's company was find $750 for this violation. the third strilings was for the way the barges were hooked together. again, the fine was only $1,500. the last violation was because of the toxic fumes the employees were breathing when they put the crane away. osha termed these sigh teagses, i call a travesty. the company that they leased the barges from was not investigated. they claimed they did not know how the barges would be attached. they claimed they were not responsible for the barges after they were leased. the u.s. district court for the eastern district of pennsylvania found the ruling made on march 31, 2006, that they did know that the barges did not have a means of egress,

yet when leased, their companies were not equiped with a gangway or ladder. workers from local 333 protested by striking against tugs. one of the issues that was being protested was the unsafe practice of attaching barges. again, they denied responsibility, but the barges were attached haphazardly. another family suffers because of the same negligence. i am here today to personalize the fact that a worker's life is worth more than the fines that osha places on these companies that are at fault. scott and i have two sons.

my 13-year-old doesn't remember a lot about his dad. he saw a therapist weekly for a couple of years because of grief issues. he's entering high school next year and was accepted to a magnet high school, a great honor. his dad is not here to celebrate with me. nicholas only remembers when his dad would i feel it him and read to him. brian and i tell him stories about his father so he knows his dad loves him very much. my sons are without a father. i am without a husband. we will never sit together and watch our sons graduate from high school and college. we'll never feel my husband's arms around me again. i'll never going to be able to hear his voice. according to the fines osha levees on scott's company, scott's life was worth $4,950. the company owner was not prosecuted. if he had been charged, he could have been convicted of a misdemeanor. he could with a walked away and leveled his life. my husband did not walk away. scott left behind a wife, three sons, three sons from our

marriage, one from a three marriage, and many family members and friends who loved him tremendously. we are here today to talk about the process of finding companies, especially relate violators by osha. i am still, after almost eight years ark pulled at the fines that were levied against them scott's company. they should have had to pay as dearly as i did for their ongoing neglect of workers' safety. they should be criminally prosecuted if possible. they let their company insurance lapse. there was no insurance on scott when he was killed. this was a action on the part of the company. they claimed they did not know how the barges would be fastened together, and they were not responsible. no action was taken against them. as i said earlier, the staten island shipyard workers went on strike last year, not because of low wages, not because of health insurance, they wanted to strike because weaks marine were knowingly exposing their

workers to unsafe practices, including how they fasten their barges together. companies that do not practice safety precautions should be fined highly. workers life is vabble. i also mentioned that before they were fined $490 for four serious violations. one day, two years after scott's death, certaining for information on the osha site, i discovered that armco was given the opportunity to plead down the fine. they only had to pay $4,000 for scott's death. he was never notified. i was never notified they were granted this privilege. i was never notified about the en formal hearing that occurred. i was never given the opportunity to talk to osha before this plea deal was made with the company, never asked if i knew anything that would help the initial osha investigation. i am pleased that osha

announced a new system of fining companies. the fines are being raise and had criminal charges can be filed against repeat offenders. there are too many repeat offenders. my situation is not unique. there was a heft of leaks in the tanks of sulfuric acid. jeffrey's body was never found, but his boots were. eight other workers were injured, and also the recent disaster at the upper big branch mine in west virginia has brought the subject of dodging violations, deliberating hiding unsafe work places, and putting this before the lives of the workers to the news, to the attention of the public. massey has not been held accountable. 9 hard working men lost their lives because of this greed.

29 families suffered needlessly because of this greed. i am in a place to know that the suffering and depreef does not go away. neither does the anger. >> would you skip your last paragraph? >> sure, not a problem. as a teacher and parent, i know it is important that a child understand there are consequences to their actions. at all times must face they are responsibility, must be held accountable for their actions. please don't let another family suffer as we have. more companies are actually punished, the more they will realize they must practice work place safety. thank you for your time. >> dr. brant, welcome, and please proceed. >> i'm honored and pleased to be here to testify in support of worker health and safety and to prevent needless worker injuries and deaths. i'm here representing the

professionals. we believe we can improve worker health and seast in five ways. first, holding employers who disregard the law by increasing penalties and enforcement. second, requiring injury and illness prevention programs in every work place. third, continuing to fund compliance assistance programs such as the v.p.p. and consultation services to assist small and medium sized businesses. fourth, showing the valls of health and safety to employers and employees. and fifth, improving training and skilled development opportunities for osha inspectors. workers expect to return home healthy and safe. this requires employees and health and safety professionals to identify and eliminate occupational risks. to do so, it is essential we have oversight. second, there are skill many who feel it is not worth the

cost. for these employers, the penalties, it's just considered the cost of doing business. assist we've heard today, this must stop. it is inconceivable that a rule result nag fealingsity is a misdemeanor with minimal penalties. employers know that if they violate an e.p.a. rule, the penalty can be severe, while violating an osha rule is simply a slap on the wrist. third, they support the section of the protecting american workers act which increases civil and criminal penalties for employers who violate osha rules and regulations, as well as increasing penalties for violations. we also support language to make officers and directors legally responsible under the act. fourth, criminalizing willful violations through changes and regulations must be carefully considered and applied however. the standard of evidence will need to be higher than it is today. as a result, some osha and msha

inspectors may need skilled development. we support efforts to ensure compliance officers achieve professional certification as a certified industrial hygienist or certified safety professional. most of realize they're good for the bottom line. we need to share these red lights with employers and employees. penalties and enforcement alone are not sufficient. we support stronger penalties and enforcement are balanced for greater funding for consultation services to employers. one of the most successful programs is a.e.h. and ensures adequate funding to support it.

one effort being considered is to require a program in every work place. assistant secretary michaels recently said what is needed is a veerment that every employer establish comprehensive worker health and safety program that features worker participation and structure that foster continuous improvement. osha is also addressing the problem of outdated exposure limits by creating an agency task force to compile options on how best to deal with the issue of p.d.l., most of which are more than 40 years old and are scientifically obsolete. congs can play an important role. the actual budget is just over $550 million, while the e.p.a. budget is over $10 billion. their budget is 18 times

greater than that of osha. members, and i suspect the family members here, do not understand this budget discrepancy. society has such stringent penalties and enforcement for veermental matters, yet penalties that directly impact workers are not gven the same importance. shouldn't we dare at least in which about people? i thank you for this opportunity to participate and present our views. e.h.a. offers our assistance. >> thank you very much. >> thank you so much for the opportunity to speak to you today. i'm here today to talk about the osha volunteer protection program, what it means to my company and to ask you to reject the plan laid out in the administration fiscal year 011 budget proposal.

in addition to a rug russ aidity, each company must submit annually a health evaluation that analyze ls the elements of the program, an evaluation of meeting those elements, and what improvements they can make to strengthen that program at their seethe. i have access to education based on real world experience, networks of experts, and other resources. it has also getch me the ability to engage my work place in a safety program that they have ownership of. scott's electric quid gold started in a garbage as a family business. currently we have about 65 employees at our facility. our prkts are manufactured totally in the united states. we make a conscious effort to purchase raw materials also in the united states. if you look at our major competitors' labels, it states, "distributed by blank," that means it is not manufactured

here in this country. we manufacture several household chemical products and a lien of skin care. the past year has been challenging for us as a small company, as it has been for everyone. but there was one thing that remained consent, and that was our safety program. prior to implementing v.p.p. elements at our work site, our injury rate was 13 reportables. after implementing the elements and being in the program for several years, we reduced our injury rate to zero in 2008. the v.p.p. has a proven track record. companies that participate in the v.p.p. have about 5 % less injuries and illnesses than their counter parts. there are significant direct cost savings. however, the most important change that i have noticed is our employees' involvement in their own safety.

our employees have a commitment to safety both at work and at home. as a small business, we face a number of disadvantages in this global economy. as a safety and health management system, v.p.p. produces a culture change. less time is spent replacing them and less training time getting workers up to speed. our employees takes a massive amount of pride in telling others they achieved v.p.p. status. he could go on and on about the people who participate in the program, but i'm also here as a citizen and american workers to pay my taxes, vote in all the elections, and i maryland my census on time. i'm not here as someone with a political agenda. i don't know anybody any favors, and i don't make

promises to special interest groups or organizations at the expense of very valuable programs. i am here to object to the krpt proposal to cut direct funding or to seek alternative funding for the program. it is imperative that language be included in the fiscal year 2011 proposal. the v.p.p. is helping osha with their mission of keeping american workers safe. we have extended health to achieve ate the strain. the budget for year 2010 was increased, but the agency has reduced a number of on-site audits and recertification audits. wheel my company has done more with less, the agency has done less with more. the proposed budget for fiscal year 011 drecks funding to enforcement and leaves v.p.p. out in the cold. even though it's a proven program for reducing injuries and illness in the work place, the alternative funding being proposed is a fee-based system,

and i can tell you scott's liquid gold vehemently opposes this system. the fee-based system not only adds another layer of cost to our already strained company budget, it reduces the integrity of the program. the v.p.p. was intended to be a three-way partnership between osha, management, and labor. the agency effectively took away that leg of the partnership, violating their own and eliminating hazards in the work place. it is doing a disservice to their mission of ensuring the health and safety of all the nation's workers. the proposed fee-based spending will exclude small businesses such as scott's electric quid gold from participate. in return, osha will lose my

company's commitment to helping to educate and train other work sites that may not have the kind of safety program that v.p.p. requires. two of the goals of the agency are to ensure safe and healthy work places for the nation's workers and to give workers a voice in the work place. by committing most of the programs, they effectively have gotten rid of most of their tools except for met for cal. one of the first things that you learn is that you need to use the right tools for the job at hand. by only having a hammer, they're educating companies who have less than stellar safety programs. seeking alternative funding for v.p.p., the agency is keeping

that tool, but they're locking it up and only making it available to the companies that pay for it. this seems to directly conflict with section 2-b. v.p.p. provides many tools for osha. it provides man powers for special government employees. it provides the thoughts and expertise from over ,300 work sites. why would they rely on enforcement actions only? realistically, most sites will never see an osha compliance officer and will continue to put employees at risk with unabated hazards. enforcement actions are usually after the fact and in response to loss of life or imminently hazardous situations. wouldn't the agency rather save lives than respond to the aftermath of the catastrophic events?

osha needs a complete tool box. please reject the fiscal year 2011 budget until it includes funding for this very important program. thank you very much. >> thank you very much. so you're opposed to a fee-based system? >> yes, i am. >> well, we're looking at that. for other proposals that have been made in the past. mostly i've been opposed to fee-based system because what you're trying to do is either protect the public or do something that goes to the benefit of benefit of society at large, that type of thing, so therefore, it had to be pecked up rather than each individual company or whatever it is that's working out for the fee. i'd have to think about it in

this context. one thing, in looking at your testimony, you stated that companies go above and beyond what osha requires. if that's the case, it would seem to me that you have nothing to fear from increased penalties for violations, especially for knowing or willful violations. is that so? tell me about how you feel for increasing the penalties for knowing and willful violations. >> we're not perfect. v.p.p. companies are not perfect. we have very minor, but v.p.p. companies are very familiar with the regulations and the standards, chapter and verse, and generally try and go beyond what osha requires, and i'll give you an example of the not too hazardous situation. the forklift operator training, the standard only requires it be done every three years. my company does it every year.

so that's going beyond what the standard requires. most companies go beyond that. >> again, suspects you're doing obviously good things and all these v.p.p. companies are, you've heard that the comments made before in the previous panel about how penalties for voormental violations are millions more times -- >> i would object to increased penalties. when you hear stories like ms. shaw's or the miners in west virginia, i've had my own family members were killed on a construction accidents. i don't object to that at all. that's definitely not what my objection is. my objection is you need funding for a program that reaches out to other companies. >> ok. i get it. thank you. dr. brant, could you expand on thousand increasing penalties for those who ignore laws will

change the economics of safety? >> we examined the practices of various employers around the country. what we discovered is that those companies that invest in health and safety saw a positive return on that investment. i'll give you an example.

if the person doesn't wear the hard hat, it's the employer that gets fired. and if two people aren't wearing their hard hat, they're repeat offenders, so you have to be careful when we define these penalties so that perhaps we need to do it so the first and most control of the situation is the one that has has to have some responsibility for the situation, and i don't know exactly how to do that. another thing is drug and alcohol testing that it brought down accidents dramatically as well, doing that business. mr. brandt, do you support work place drug and alcohol testing programs as a way to maintain safer work places? >> yes, i do, senator. >> thank you. >> thank you for the brevity of the answer too. i was glad to see that you supported v.p.p. do you think that it's

responsible for the considerable growth of new v.p.p. members over the last decade, and does that build a culture of safety in the work place? >> the culture -- a culture of safety reflects the values, traditions, and beliefs of any organization, but to have a safety culture requires participation, management leadership, and i just don't mean i wrote a slogan and that doesn't represent leadership, but leaders who walk the spaces, who walk the talk, who support workers, and similarly, workers need to participate in collaborately with management to solve those problems. so if we can identify early, we need to find and fix them. and there's joint accountability, just as you were talking about. there's accountability for workers who work with management, but also accountability on the part of

management to work work together with the employees to scrktively solve problems. the first principle of had you been health is intervene early, reduce the severity of the problem, particularly when we look at ex-pow sure limits, health hazards. those are 40 years old. what we need to do is change those because they're obsolete. that's what we need to do to protect workers. >> follow up on that a little bit. do you believe that the rank-and-file osha employees who are out working every day to do inspections support v.p.p.? i really don't know any oshaa inspectors, so i really can't comment. but what he would say to anything that reduce the workload in a meaningful way

for any agency and reduce responsibilities would be hard to reject. >> i work with a lot of osha people in my region. i make them at conferences, i work with them on other panels, and i really believe that they do believe in the v.p.p., but i believe it's our role to continue to the education. because it brings other sites in, it educates our osha folks, what we can do for them, and i really do believe the more they learn, the more they will support the program. >> thank you, and i have more woes for all of you, and i'll get those in writing and would appreciate an answer. it's been very helpful. but i know we've kept you around a long time. >> it is getting late. i did want to ask just one thing. you discuss the need to strengthen this and increase whistle blower protections.

that's come up in our discussions today on previous panels and on this oshaa panel too. just tell me how you feel about that, about the whistle blower protections, and do we need a unified whistle blower protection policy to everything? the wrestle blower provisions of the osha act are 40 years old, some of the first ones that were enacted. i think there have been two dozen statutes enacted since that time that have some kind of protection related to the environment, safety and health, other statutes that provide protections for people to speak up, either in the work place or the government. when you compare those statutes, what you see is the original osha act, the weakest of all of them because it was never changed. so we've learned over the years what needs to be done. so, for example, under the osha act, very short statute of limit tation of 30 days. so if you don't get your claim filed, you're out of luck.

the only person who can take up the claim is the secretary of labor, and they have to do it in court. there are a lot of resources here. there were 1,400 complaints filed with federal osha. they've got 75 sectors, so the fact of the matter is that the resources haven't existed at the federal government to take up those cases, so the ability to take up the case on their own would be a very, very helpful provision. there aren't any receipts in the osha act for preliminary restatement. so if even in they're refined, the let gation going forward, they're out of luck. and so what we would like to see is the osha act brought in line with the very best practice, some of which this committee has recently adopted and recommended to put those protections in place under the basic safety and health law.

>> in light of that question, he have a follow-up question. just last week, the national labor relations board decided a case in which they fined one of its members $,500 for reporting a safety violation by another employee union member. to the employer where they work. and this case involved the setting up of a free standing conveyor belt that spans 130 feet and transfers material such as concrete and aggregate. the employee was complying with the safety rules by reporting the violation and protecting himself and all of his co-workers. the union in the case was the international union of operating engineers, local 513, afl-c.i.a., the afl-cio, i have no knowledge of this case. i'm happy to take a look at it and respond to your country in writing, but unfortunately, i don't have the information to

respond today. >> thank you. >> just in closing, thank you very much for being here. i know i speak for my friend mike and all of us here, we're sorry about the loss of your husband. and we appreciate how much -- what you've done. to make sure that others don't follow the same -- have the same fate. so i thank you for your leadership in that area and for continuing to speak out and to advocate. so thank you very, very much for being here. does anyone have any last thing they need to say or go on the record at all? and again, he want to thank all of the people here who brought the pictures of their family members. again, a very poignant way