committee in the oversight hearings. we as members of the panel to stand, raise your right hand. regarding to the testimony you provide to the committee today and all subsequent committee communications concerning the hearing, do you solemnly swear to tell the truth, the whole truth, and nothing but the truth so help you god? thinking. .

thousands of people are affected by this and their livelihoods are being impacted. i have seen the response firsthand. i have spoken to the men and women on the front line. there is a deep and said test results to do all that we humanly can to stop the leak, contain the spill, and minimize the damage. as a responsible party of the oil pollution act, we deeply are concerned. our efforts are part of a unified command established within hours of the accident.

the department of homeland security, the interior, as well as state and local governments, we are committed to working with them, the president, governors, congressional members, state agencies and local communities in mississippi, alabama, louisiana, florida, and texas. i would like to underscore that the global sources of bp are committed to this effort and have been since the outset. nothing has been scared. everyone understands the enormity of what lies ahead and is working to deliver an effective response at the wellhead, the water, and the shoreline. before i describe our response effort by want to reiterate our commitment to find out what happened. there are two key lines of inquiry.

first is the explosion and fire on board of the deep water horizon. the second, why did the blowout preventer fail to shut the well and release the rig? we are cooperating with the joint investigation of the department of homeland interior and investigations from congress. in addition we have commissioned an internal investigation, the results of which we intend to fully share. in the meantime we cannot draw any conclusion before all the rigid before all the facts are known. our subsea efforts are advancing on several fronts. our immediate focus is on the rise of the insertion two, putting it to into the end of the existing damaged drill pipe. that is the primary source of the currently. the gas and oil will then flow

under its own pressure on the surface. we are working to stabilize the system through the insertion to and stop the flow of oil, preparing what is known as a top kill to inject drilling mud and cement directly into the well. a proven technique that has never been used in 5,000 feet of water. we started to drill two relief wells, taking an estimated three months. unified command has approved the application of dispersant directly at the leak site. on the open water a fleet of 900 response vessels has been utilized. we are attacking this bill on the surface. to protect the shoreline we are

implementing what the u.s. coast guard has called the most massive protection effort ever mounted. 1.9 million feet of boom already deployed. seventeen staging areas, 15,000 volunteers, and 20,000 people working on the issue. we recognize that beyond the environmental impact there are also economic impacts. bp is committed to paying all legitimate claims for loss and damage caused by the spell. we are expediting payments to small business owners whose livelihoods have been affected. we have paid over 19,000 claims so far. we are filing 24 hours per day, with a phone line and walk in claim offices. we are taking guidance from the

established regulations and other information provided by the coast guard, who handles and resolve these kinds of claims. tragic as the accident was, we must not lose sight of why these companies are operating in the offshore of the gulf of mexico. it is a resource required by the nation. the entire energy industry is under no illusion under the challenge we face. we know that we will be judged. no resource will be scared. i can assure you that we in the entire industry will learn from this event. i thank you for the opportunity to be here. i will answer any of your questions. >> mr. newman? >> chairman, ranking members, members of the committee, thinking -- thank you for the opportunity to speak today.

in the chief executive officer of trans ocean limited -- i am of the chief executive officer of trans ocean limited. ibm and petroleum engineer by training. i have spent years working on and with drilling rigs. i have been the trans ocean for 15 years and i am proud of the contributions we have made during that time. today i said before you with a heavy heart. the last few weeks have been a time of great sadness and reflection for our company and for me personally. nothing is more important to either of us than the safety of our crew members. our hearts ache for the widows, parents, and children of the 11 crew members, including nine trans ocean employees that died in the deep water explosion. these are exceptional men and we are doing everything we can to

help their family cope with this tragedy. over the last few weeks we have seen great acts of courage and kindness in our colleagues and communities. embodied by the 115 crewmembers rescued from the deep water horizon and were focused on the safety and well-being of their colleagues. it was also embodied by the brave men and women of the coast guard, who provided on scene response and search and rescue efforts. as well as the medical professionals, friends and family that greeted the crew members when they came ashore. and body by our friends and colleagues who have rallied to help the families of the men that were lost. this has also been a time of intense activity and effort. immediately after the explosion

we began working with bp, the coast guard, noah, and the unified command in the effort to stop the flow of hydrocarbons. they had been working directly with bp to identify the alternatives. development drillers two and three are seen in we will continue to support bp and the unified command in these efforts. at the same time, we have been working hard to get to the bottom of the question that this committee and the american public want and deserve an answer to. what happened on april 20 at and

how we make sure it will not happen again? we have put together an independent team to determine the cause of those events. comprised by trans ocean and industry experts, they will be interviewing people with potentially helpful information and studying the process involved. because it is a collaborative effort, the process of understanding what led to the april 28 explosion and how to prevent such an act in the future must also be collaborative. our team is working side-by-side to get to the bottom of this issue. these efforts will continue until we have satisfactory answers. while it is still too early to conclude exactly what happened, we do have some clues about the cause of the disaster.

most significant is that these events occurred after the well construction process the well had been sealed with safety cement. for that reason the one thing that we know is that on the evening of april 20 there was a sudden, catastrophic failure of the casing, the cement, or both. without the failure of one of those elements the explosion could not have occurred. it is also clear that the drilling crew had very little if any time to react. initial indications of trouble and subsequent explosions were almost instantaneous. why were the blowout preventers not able to shear the pipe?

until we know exactly what happened on april 20 f we cannot determine how to prevent such strategies in the future. regardless of what is uncovered our industry must put safety first. we must do so for the sake of employees, families, and people all over the world to use, enjoy, and rely on our oceans. thank you again for the opportunity to speak. i am happy to answer your questions. >> thank you for your statement. i very much appreciate, as i am sure the families of the victims and those that survived the blast, both of you expressing your solidarity to those families. your grief at the loss of life.

your recognition of the use of the work -- they would have done everything in their cable technology to address this bill and then you should be working fingers our committee has had expensive experience under republican and with bp. 2006 there was an oil spill on the north slope. not so much of this bill, and it

went undetected for five days. the company ignored four alarms on its systems. ordered to replace the pipe. march, a corrective action order to perform inspections. july 20 f, rude and crude oil from their western operation area pipeline and clear the pipe. august 10, 26.

april 40, the following year, a third corrective action. august 15, a toxics spill of methanol and the department settled for $20 million >> quite the record. >> i want to know when the state and kamal to bridge a culture of commitment to stick it -- safety -- it does not begin with the coast guard or

minerals and management service. it does not agree with an airline. this gives you the corporate board room. fifth there is not a culture of safety, the role of the government needs to see the standards and they are followed. what can be changed in the corporate culture of bp? >> in 2005 and 2006, as you have noted, 2007 tony he word came in an estimated absolutely, absolutely clear that the number one agenda item for this company is safety and compliance. we have changed the lot. leadership has been entirely revamped. management has been revamped. there has been a safety ethics

of a committee established at the board level. it makes robust utilization of what is called a group or a corporate operational risk committee that has been organized under tony award to understand risk across the company. safety and operational integrity organizations have been set up separately to maintain integrity issues throughout the company. we have issued an operation's management system that is rigorous and extremely detailed that we are implementing i have got 23,000 people in the u.s. and as far as this incident goes we have not learned

anything yet. then the make sure or we will be undertaken. >> i'm glad to hear that you established a committee to make the structural changes we discussed. in the exploration plan submitted in 252, bp said "in the event of an unanticipated blow out it is unlikely to have an impact based on industrywide standards when using proven equipment and technology for such responses. implementation of their regional oil spill response plan address available equipment and personnel techniques for

containment and recovery of the oil spill. would you make that statement today? >> some of the basic assumptions that were made across he industry and as well by ourselves are partially predicated on a blowout preventer that works or if it does not work it can be manually intervene with with remote operated vehicles. if that does not work, if i can explain we have it -- an extremely unique situation i have never seen in my history anywhere where the riser did not work. we had a marine riser package on top of the blowout preventer with twisted riser on the end, making this extremely complex. we cannot get on top of it.

a very unique situation. the plans for the service response are very robust. they were enacted within two hours of the explosion. that has proved to be impact fall. under the commandants leadership that effort is as aggressive as it can be. what i think we need to a knowledge is that since the intervention, this is an unprecedented event. 42,000 wells drilled, we have not had an event like this. i believe that subsea intervention and the capabilities will need to be looked at in light of this event. that is an industry issue or regulatory issue and certainly a company issue. and needs to be looked at, revisited, and examined. trans ocean has considerable experience operating at great depth. the death of a well and the

briefing i heard from the command center or is below where submarines can dive. dangerous conditions. every precaution should be taken. did you have knowledge of the failures in the past? did you question of they would be able to function at that depth? the temperature of that very cold water -- >> in respect -- in response, trans ocean has a tremendous amount of experience in operating and deploying blow up

a mentors at significant water depths. in the industry's experience with respect to the performance it was taken into consideration in the development of maine and plans with a rigorous inspection programs and inspection of our equipment. >> the venture was produced by cameron petroleum of houston. he would subject that to operational capability adepts of 5,000 feet? >> it is tested while on the bottom. tested every week. every other week the pressure containment capability. the fresher containment capability was tested and successfully passed on april 10. the function was tested again on

april 17. >> to supervise those tests? >> they are conducted by trans ocean under the watchful eye of bp. >> not under the watchful eye of the coast guard or marine services of the interior department's -- interior department? >> they were less visiting on april 1. >> fitted not symbolize the test? >> they were not present when tests were conducted. >> thank you. mr. martin? >> given the record from the inspector general, the investigations concluded in 2008. i see chevron as one company involved in the investigation.

do you know of any involvement in some of the inappropriate or potentially illegal or criminal activity with your employees in these investigations. anyone with your firm? >> no the obama administration submitted nearly three dozen deep water grid proposals mr. mckay before. >> yes, we do have i was -- >> i

was unaware that there were this many approved or pending. is that correct? >> i do not believe there has been they said the this was the plan that was given they

constructed after the incident. this is basically which you submitted. i have a copy of the approval of the statement from bp. i just got the first one yesterday and is that correct? waaf and you have done this around the world. europeans to have another measure, is part of a plan.

you seem to be experimenting with the dollar unfortunately on fossil fuel, 20% in the gulf, where so dependent on that. 60 plus% and the addition of technologies mr. newman?

>> a couple of things. first fellahs of what it is impossible mr., what about china drilling?

i believe that they have been exploring down there, hyatt but she needed to be ready and we need to have your sixth serve. a worse place incident took place and has to it with another

incident in deepwater you have a list in the record, mr. chairman, for a vote -- for presidential approval.

in light of what we learned as a result of this incident. >> in the bush administration, which recalled no top hat or

blood for enter corrective action requiring them to spill anywhere in the gulf a worst- case scenario.

we have spoken in every location and have serves the gulf coast response. >> the plan also to a coastline -- as i understand it.

to people who have been impacted, who has got payments so far?

fishermen, business the the j so, we are trying make sure the people have no problem getting payments or they're needed expenses to live. thousands of people are being acted by this. we have increased the claims system or addressing the need. >> claims offices have been established but and we are

completely irresponsible to play the plan of roads there is a natural resource damage assessment study under way that will lead the federal trustee to establish resource damage i can go through the coastguard >>

supplemental to the comments, i would cite the damages for the

net costs to governments, no limits on liability maybe we can make me make an analyst at ridgy echo it was a tragedy in the

first on that we had our and the nightmare had the same indicator off on the coast of santa war.

i will leave that it was to prevent a spill from going out based on trial, pumping oil flow lower 48, with ingenuity it

figures and the damage was much more far reaching because you're trying to clean something that was before the human eye. when let's be careful of what we're trying to use because the media is always looking at the dead duck. going to my question, the thing that was the most on just was

not necessarily to the environment. -cufit was the impact to those t arrive in, and livelihood. 22 years we were in court with responsible parties. when it finally settled, the amount of money received was less than $5,000 for fishermen. i do not want to see that in the gulf. i believe that you are addressing that issue now. once it gets into court you are creating a problem for those that should receive the benefits of this tragedy. and we did lose one species of fish but not entirely.

the salmon have come back. well done. you might not see the oil that is under the rocks. my one challenge to you is to make sure and as far as lost in combat, they should know how the fish. >> some of the fishing areas are closed. about 19% in the gulf right now. we are compensating those fishermen. most of them want to work rather than just get common -- compensated. many of them are working in terms of response. >> i understand and commend you.

they did the same thing in alaska. what happened once the cleanup was stopped and they could not finish, it took 22 years and we have made it clear that we will pay all legitimate claims. >> i compliment you on that because that is the most important thing to the impact on the economy of the coastal states. mr. newman, we are trying to find out -- mms discovered reason nearby vessels. was there in nearby explosion? >> at the time of the event they were loading and transferring

operations which is an indication of the magnitude of catastrophe that must have occurred. for the cement in the well which i think is an indication of this tragedy. traveling all the way up to the rate and the supply vessel alongside. it has traveled. >> have you recovered the b 0 p.

and until we recover and dismantle how have those comments been verified? >> there are two pods mounted and they serve to transmit the electronic signals. we recovered one of those control pods.

and there is a battery contained within the control box. the battery was mentioned the manufacturers minute is that minimum. >> if could recap, the real damage was caused by the blowout that caused the main pipe to lie in the trenches. is that the challenge ballade?

following the explosion the rate remained afloat for 36 hours. the pipe that connects the gop to the rig remained largely intact and connected. as indicated it has presented a certain amount of challenge. >> as we go through this engineering process there has got to be another thing. by the way, does anyone now the pressure? when was that tested? how do you fix that? with the ocean floor below mundelein. >> i have a preliminary

calculation. based on the weight of the blood used in drilling the well and calculating from the rig 18,000 feet down, i calculated somewhere between 13,014 thousand psi. >> and you know that when you put the blood and cement in. pressure feels different that those deaths. >> there are a wide spectrum of pressures resulting from over- burdening. a number of factors that determine the pressure in a reservoir. >> my goal in this hearing is to make sure that we do not point fingers. that we are going to drill. most of you voted against drilling onshore at one point.

we are willing to drill in the gulf because 24% of our oil comes from there. we must make sure that we learn from that and have that equipment available in case this happens again. like you said, this was the first major blowout we have had. i had contact with the chinese. to honor and 50 feet deep, with a little lightning bolt. china, for those in the audience there is more at the north pole than anywhere else. keep in mind as out war keeps talking about climate change. we do not know where it came from but it is there. china does not have the interest in preventing a spill.

we must be prepared to address that off of the coast of florida. thank you, mr. chairman. >> thank you, gentlemen. >> who is ultimately responsible for the proper functioning of the prevent her? >> because the piece of equipment is owned by trans ocean, we perform the maintenanne and inspections. >> so, you are ultimately responsible. was this capable of cutting the pipe at any point? there are numerous reports saying that 10% of the pipe used at that depth, many blowout preventers with a possibility of

failure even if it worked? >> it would depend. >> are there rams that can shear the more reenforced areas of pipe? >> most are not designed to sheer. >> i am not aware of any that are. >> some 10% of the pipe, if they happen to be going but will not work, right? even though there were him --

working for you. if we have rams that are not capable of cutting the pied >> we are a responsible party for the field cleanup and damages. there is a question as to what happened. >> if your contract in based on these partial islands to get a cheaper deal, the question to you is it is very possible that there is a blowout preventer.

one of your engineers said that the drill pipe exceeded the capacity of the sheer ramps based on the reliance on drill pipe. how can you do that? it means that these things do not work, at least some percent of the time it will not work will -- will lower it no matter what. ultimately you are responsible in the oil is coming out under your lease.

i am worried about what happened. you keep using the word legitiiate claim. i am wondering that if you do not claim the cap now you might reserve the right to do it later? >> by having clear from the first day. >> you would say that having a blowout and they are ok if it does not work part of the time. and i think that there will be changes made.

. there are others that bp has said would be more effective on this grade of oil and less toxic. why are we not using those that? i am concerned about the water column. >> we are using preapproved and made up be afraid of them. we are following through unified command for disbursement. i know that they're testing disbursements with the oil and if there are better ones we will definitely use them.

>> there is a list. there is another kind of dispersal, we did everything we could. >> glad to have you with us. previously so of these questions may have been asked so bear with me. obviously everyone is focused on the blowout preventer that failed on the rig. either of you my answer. who designed the structure? who built the structure? to put in a camera with certain

specifications. >> >> they build it, the design it, or both? >> i do not recall exactly who designed it. it was built in a shipyard in korea. >> thank you. who is responsible for caffey -- calculating how much oil was leaking? >> under unified command of their our government scientists the flow rate calculations are out under unified command that

would have performed a similar function as the blowout preventer. >> the blowout preventer's function is to seal the well bore. i am not aware of any other mechanism out there for sealing a well war. >> but thought you might be familiar with that. responding to the gentleman from west virginia, much like the gentleman from alaska i commend you for responding in kind. legitimate claims that have not been paid, if any? >> as of two days ago i do not know of any that are denied. none of them have been denied. >> i yield back. >> mr. nadler? >> thank you.

mr. mckay one moment ago you misled this committee. in the following respect. let me give you this specific question. . . a queson, you misled him. he asked you about a use of disper disperseants. it has an effectiveness of 54.7 in the south louisiana crude oil spill. dispersant is 7.9 toxicit. mayor queen 400, toxicity is 400 compared to 454. remember, you're under oath. who decided -- don't tell me the national incident command.

they authorized use, as i understand, of any dispersants on this list. who decided which dispersant to use? bp? >> i don't know what individual -- >> i didn't ask what individual. was it bp who decided or the national government who decided? >> i don't know. >> y don't know. could you find out for me, please? >> yes. >> if it was bp that decided, why would you use something much less toxic other than you have a corporate relationsp with the manufacturer? is there any other reason you can think of? >> i don't know enough about the supply chain. >> is ther any reason you would use something much less toxic and much less effective in cleaning up this spill? >> we're usiing quite a bit of it, so i don't have any idea what the other dispersants are.

>> would you please get back to the committee with the following information? one, who decided to use this? i'm told it was bp, not the national incident command, you shouldn't lay it off on them. two, why was it decided? three, if you disagree with the assertion of this, that it is much more toxic and much less effective, let us know and find out the reason why this was being used and wheer it should be changed now. >> okay. >> thank you. secondly, mr. newman, the chairman in his opening statement pointed out that deepwater -- that deepwater horizon is flagged under a foreign flag, namely the -- i think you said the repubc of the marshall islands and when the coast guard inspects an modu under the marshall islands t takes about four to eight hours,

and when itoes under usda regulations, it takes two to three weeks. how many modus does trans-ocean have in operation in the u.s. or in u.s. waters? >> i believe there are 15. >> 15. how many are flagged in the u.s. and how many are flagged in foreign countries? i'm not aware of the flag status of every one of those vessels. >> roughly. >> i believe they are foreign flagged. >> most or all of them are foreign flagd? >> i believe that's correct, congressman. >> despite the fact you're foreign flagging th, you get much more lenient and, therefore, much more dangerous to the end safety regulations. you don't have to comply with usda safety regulations. are there other advantages or other reasons you might foreign flag them? >> if i could, counsel -- >> just answer the question, please. i i have a few more. >> the vessels are subject to three regimes, the class

society, t flag state and the coastal state. and the coasttate in the federal waters of the u.s. gulf of mexico is the coast guard. >> and yet the coast guard witnesses before the marine board of investigation of deepwater horizon incident have testifie that the drilling takes two teeeeks while the foreign investigation of the modu such as the deepwater horizon takes 48 hours. in other words, it's much less though. >> if the coast guard is conducting both the flag state inspection and the coastal state inspection, they will, obviously, spend more time on the vessel. if they are only conducting the coastal -- >> which is another way of saying they're more authorize o thorough on the vessel. >> which is another wayf saying they're more thorough? >> i wouldn't agree with that assumption, congressman, because i think part of the inspection when they're conducting the coastal state inspection is to

review the performance of the flag state inspection and the other inspection. so they are relying on the effeeness of those parties. >> i understand and appreciate the fact you're going to ignore the $75 million liability limit and you're going to pay all the damages for people who can show there is really damage, and i appreciate that. can you give me one good reason why we should have any liability limit at all, why we shouldn't simply repeal it? i understand one obvious reason would be to say, well, if we didn't have a liability limit, there would be fewer companies that would want to drill and maybe that should be, and one would say, why not get insurance for that, and one would say, surance would be too expensive. and if that were the answer, one might say, well, isn't the market telling you that you shouldn't be doing it that way? can you comment on all of this? >> i have not and we have not addressed any sort of policy issues around liability limits. we know in this particular case

we've accepted that we're a responsible party, we're going to fulfill ourbligations to that and we have not -- we've been very clear we're not going to fight -- >> soou would propose a lejts laifb move -- >> i'm snoorry? >> you wouldn't object to move or greatly raise the magnitude of liability limits? >> i don't think i could commit to what we would do, but we're focused on this issue right now. >> thank you very much. my time is expired. >> thank you, gentlemen. mr. duncan. >> thank you, mr. chairman, and thank you for the fair and even-handed way you're conducting this hearing today. and let me say, first of all, that this hasertainly been a terrible tragedy, most especially for those who have lost family members, also a terrible tragedy for our environment and our economy, and i share the desire of everyone on both sides of the aisle on this committee tha we do

everythingossible to try to determine the cause andee that it won't happen again. i do want to say, though, that i hope that -- sometimes in very highly publicized situations, and this certainly has been one of the most highly publicized ever, thathere is a tendency on the part of the congress and the agencies to sometimes overreact. and i hope we don't do that, because if we do that, we could end up hurting millions of foreign lower-income and working people in this country, and we don't want to do that. we don't want to drive gas prices to 6 or $8 a gallon or put energy costs beyond the means of ordinary citizens. just yesterday in the washington times, jeffrey bernbaum, onef

their columnists wrote this, on the other hand, pulling back and rethinking offshore drilling makes perfect sense. stricter safeguards will need to be applied, but just saying no is exactly the wrong answer. pele don't stop flying after an airplane crash. the u.s. should not withdraw from oil production offshore because of one major leak. and i share that opinion of mr. bernbaum, and also, i have a concern that, as expressed by secretary salazar before our senate committee yesterday, that raising the liability cap to some extremely exorbitant level would hurt the small companies a lot more than the bps or the big companies. and so i hope that when we arrive at legislativeolutions for the problems that we're confronted with on this -- in this situation, that possibly we

consider having higher caps for some of the bigger companies and lower caps for some of the smaller companies. but i'm also -- i also wan to see bp and trans-ocean and the other companies involved recover from this incident, because mr. mckay mentioned that his comny has 23,000 employees in this country, and certainly, you know i don't want them to be harmed by this or the thousands of stockholders that the companies have. i know trans-ocean has 18,000 employees, is what i was told, and i don't know how many of those -- how many of those are in this country, mr. newman? >> i believe it's about 2500. >> 2500. well, let me just ask just one question. the last major oil rig spill in this country was in santa

barbara or o the coast of santa barbara 41 years ago. how many oil rigs are ere? i really don't know this. how many o shore oil rigs are operating off the coast of the united states this time? anybody have a rough gues >> inow there have been almost 43,000 wells drilled and there have bn 7,000 production platforms of some sort or another in the last 50 years. >> 42,000 oil wells and7,000 production blocks. >> at the comma center briefing that we had with our kennedy center parliamentary group two weeks ago, the figure of 3800 drill rigs in the gulf of mexico was given. >> okay. i guess the point is that this is almost always a very safe and

environmentally safe way to produce oil by the percentages. i also will say this, i know that a lot of people in the country want to punish bp and the other companies involved now, but i am verympressed by the fact, if i heard right, mr. mckay, that you said a while ago that you've already paid 19,000 claims? i mean, that's just unheard of, and i commend you for that, and i can tell you i have no connection whatsoever to bp or any other oil company at all. so with that, mr. chairman, i yield back the balance of my time. >> thank you, gentlemen, for those comments. ms. brown? >> thank you, mr. chairman, for holding this hearing. let me just say i've been in congress for 18 years and nothing has happened that will have devastated my state of florida like this spill. and we certainly have a diverse

opinion on this committee, because i've heard people on thisommittee say drill, ba, drill. well, that is not my opinion! and if you're going to drill, you need to have the safeguards in place. flora has been devastated by this, and i want t put the statement from the u.s. travel association into the record. but let me just say also thatn florida, our tourism generates $65 billion, and we have over 1 million people working in this industry. and so we are devastated. people are cancelling, they're not coming to the hotels, they're cancelling, not coming to florida thinking that the fish is not safe, so we're in lockdown devastation. and i have a couple of questions. in addition to that, let's point out that in 2006, we passed legislation saying that you couldn't drill off of florida

coast because of the maneuvers, the military maneuvers. it's 435 members of congress and it takes 218 to pass anything, so keep in mind it's not going to be automatic drilling off of the florida coast. but i have a couple of questions for you, and i'm not an engineer, but sir, mr. newman, i understand that the norwegians or other countries have a device that costs about $500,000 that would have prevented this. can you give us some insight into that? yes, congresswoman, i believe you're referring to an acoustic controlsystem. it is ruired in two regular regimes, it's required in norway canada. those are the only two areas of the world where it's required. >> does it work? >> well, it is another means of activating the bop. and if you'll allow me, i'll talk about t means of activating the bop on the

deepwater horizon. on the horizon, there were three manual activation panels on the rig, regulatns required, too, -- required two, so the fact we had three exceeded those requirements. it was fitted with two automatic response systems, one which the indust refers to as a dead man, and the other one the industry refers to as an auto sheer. and in addition to that, there was an rov intervention panel. so manual intervention, auto sheer, dd man. the acoustic would have been in addition to the four tha already existed. because we would have had an opportunity to manually intervene on that bop with the remote-operated vehicle since the time of the event and actuation of the bop has been unsuccessful in stopping the flow of hydrocarbons, i do not

believe that another means of activating the bop would have made a difference in this case. >> so you're saying this procedure is not safe, then? >> which procedure? >> the drilling at ts depth. >> i'm not sure i can make that statement until we know exactly what happened. >> but we do knowhat whatever was in place did not work. >> we know that there was a catastrophic failure. >> mr. mckay, florida requested 35 million for assistance. i think youpproved 25. what was the factors that went in -- ihink the governor requested 35. what went into the decision to deci on the 25 million? >> i'm not -- i'm not sure on the difference between 25 and 35. >> 10. 10. >> yes. i'm not sure what went into the rationalof 25 or 35 as i was

not a decision maker, but i'll get back tyou. >> that would be great. we were looking at all this material, and one of the things u a were signed march 5th by the state of washington for 13 serious violations in this area. i'm just wondering about the culture. you indicated that you thought you all had put certain safeguards and culture in place, but if you're constantly being find by the state for not following your procedure, what is it -- acongress can do to ensure -- it seems i'm hearing from both sides of the al, maybe some undercrent, b we need more regulations, more safeguards or, you know, trust to verify. and i'm certain they are supportive of having the coast

guard there when you all do the testing and maneuvers and,f course, i don't think the taxpayers should foot the bill. respond. >> could you repeat the question? >> you all was find on may 5th by the state of washington for 13 serious violations. >> i believe you're referring to the cherry point refinery. if i couldust recap. this company is dedicated to making the safety culture at every single level as good as it can possibly be. as i said, we have put a lot of procedures in place and a lot of organizational capability to do that. we've made a lot of progress. i will be the first to admit the journey is never finished and we must get better. as far as this incident goes,e desperately need to understand what happened, and it wasn't -- it's the period of time where signals were there, what happened on the rig, what happened with the equipment, that needs to be understood so this industry, this company, and

certainly the regulatory regime can move forward t regulate the resource in a safe way. >> mr. chairman, i yield back. >> the chairman recognizes. >> we've seen itn tv and we've seen it in the newspaper, pictures, but ctain from my perspective, when you're flying out there and a little bit offshore at that point you start to see the oil sheen and the spill, and the various colors of the rainbow that it was taking on, orange and purple and pinks and various things, it really is unimaginable, i think, to see it as it is emulsifyin

solidifying, the various things that are happening with the oil, i felt physically ill to think about what was happening underneath the ocean and what was going to happen as this thing was like a doom, a death, is floating toward the gulf shores and possibly now getting into the loop of the gulf stream, et cetera. just one thing before i ask a question, i would just make a general observation. we talked -- had a lot of people commenting about the energy needs of the country. there is no doubt we have a tremendous amount of energy needs,nd we're going to continue to consume energy. and we should. but, you know, coming from michigan where we're about to unveil the chevy bolt, which is an electric vehicle, and we're trying to off of some of the reliance that we have on fossil fuels, i would just say that i would hope that this congress,

and as a federal policy, would ta a much better look at nuclear. we've got to get off this oil at some point. the cap and trade, unfortunately, didn't even address, really, nuclear energy. we are not going to build enough windmills. we don't even have a ansmission grid to have enough electricity right now to power all of these electric vehicles that we're putting on. so i would just say i hope that we think about -- we aren't going to stop having energy consumption. we need alternative types of energy. and in regards to the spill in the committee hearing here today, i would say, gentlemen, unfortunately i just cannot believe your testimony about how you are preparing and testing at that depth. and i think it was mr. newma who me a comment saying you were going to re-evaluate the response capability in the future, and i would say that is probab the understatement of the year, sir.

the briefing that we had from commander mary landry of the coast guard, and by the way,he coast guard is doing an unbelievable job. when we saw the sombrero, as they were lling , the dome that came down, 500,000 feet of steel cable, and then you're trying to get the dome do onto the pipe there, the riser pipe, which as you mentioned, had been badly damaged. it did look like one of those video games where you put the quarter in -- i know it sounds ridiculous, but that's what it looks like. the thing is it was mentioned at that time that the dome was technology that has been used and has been proven to work in the past at 0 feet of depth. not at 5,000 feet of depth where you have 300 square inch pounds

of pressure. keep in mind that is at least 35 feet dper than our nuclear submarines can evengo. and then it's been said here, i think mr. mckay mentioned you ha another proven technique, injecting mud and concrete into this well, but you said it's never been used at 5,000 feet. i don't know at what depth you use it, but do you have laboratories where you simulate that type of depth? we have l these oil rigs out there at that type of depth and the kind of technologies you have have never been tried there, it suspends belief to me to think that we are not simulating these techniques and to be prepared for what might happen in the future. and my last thin i'm almost running out of time here -- that's my question. my other question is, you had the best chemist in the world that had to come, the guy from brazil, everybody you were bringing from all over, to develop a chemical composition of antifreeze for the dome where

the ice crystals formed, floated the thing up which was unexpected. again, have you had any success now so the next time, god forbid if this eve happens again, do you simulate that in a lab? are you prepared for this to happen again? >> there i a tremendous amount of simulation that goes on for the kill operations and the coffer dam we put down there. we knew hydrates would be a massive problem. this ia specific fluid, so you can't predict the fluid beforehand. all i can say is this is unique and unprecedented. it's not been experienced before, ever. we can model these things, but it's at a particularepth where humans cannot touch. like i mentioned earlier, i do think we'll learn a lot from this, and i think it will have to be incorporated into industry and subsidy capabity, i do

believe that, yes. >> thank you very much. >> we have a vote in progress, but tre will be time to continue the questioning. now, mr. cummings. >> thank you vy much, mr. chairman. to vote for you gentleme tranocean owns and operates the deepwater horizon, it's also true bp is trans-ocean's customer to the tune of approximately $500,000 per day. ultimately it is bp who is seeking to achieve a proper drilling operation through the use of the deepwater horizon, but we also know that complex deepwater drilling operations require multiple, specialized parties to achieve success. on the night of april 20 when the accident involving the

deepwater horon occurred, efforts were under way that involved personnel from bp, trans-ocean and haliburton to capture all the water the deepwater horizon was drilling. who was in control of the operation at that time? specifically if there had been a conflict among the views of haliburton, trans-ocean and bp, how would have that be resolv? >> because it is bp's well, bp's well design, it is ultimately bp who determines whether or not that well is being constructed to the specifications. and if there was a conflict on that d that day, you didn't answer that piece, who makes that decision, bp? >> it depends on the nature of the conflict. in it is a conflict related to the design of the well, because it is bp's design, bp will make

the ultimate decision about that design. if it's a conflict with regard to safety -- >> safety? >> if it's a conflict with respect to safety, people who work for trans-ocean know and firmly understand that they are obligated to stop any unsafe operation. >> now, do you agree with that, mr. mckay? >> trans-ocean, there's normally about 120 people on the rig. we have two to three people, normally. we are effectively designing the well and trying to make sure the execution steps are done. trs-ocean operates that rig. we have nobody qualied to operate or do anything on that rig without trans-ocean doing it. >> so wod it be fair to guess that -- can you tell me with any disagreements between those parties that drilling managers in the days or hrs bore the

blowout, and if so, what disagreements might there have been? do you know of any and would you know that information? >> i don't know that information. the investigation is going to get to that. i heard about some conversations on "60 minutes" and other places, but we've got an investigation under way, the others do, too. i think the conversations and the digal data, physical data that was occurring before the well explosion is critical to understand what happened. >> very well. when i visited down there and had an opportunity to speak to a number of people involved in this process, mainly what they said, and these were people who worked with the industry on ships and bring out supplies and everything to their atforms, one of the things they said is that the industry that more than

like a mistake is made, some of them may have been human error, but one of the things they sd is they want to make sure there are plans in place and equipment in place so that if anything like this er happens again, we would be able to effectively and efficiently deal with it. and as i'm listening to you all, it sounds like -- and correct me if i'm wrongyou all have a lot of confidence that we can do that? in other words, have we cated a monster that we cannot control? do you follow me? >> could i just comment? the sub-c response is what i think everyone is concerned with. we have three rigs working simultaneously, and we're trying to stop the source athe blowout preventer, then trying to kill the well and all the while tryingo contain it wit sub-c containment. i do think the industry, as we look back on this, will understand what sort of generic capability may be needed tbe

on stand-by. the may be protocols for industry to immediately be able to help and organize for that help. there are a lot of things i think we're going to learn out of this. we've done some other things that i think will put us on the path to make this safer, i really do. >> very well. i'sure you heard my comments about the coast guard and wanting the coast guard to be much more involved early on so that i think they can he a trendous impact and probably would be very helpful. do you have an opinion on that? >> well, i think we're very as second panel included the administrator for the national oceanic and atmospheric administration and epa administrator lee said jackson discussing the federal reaction to the of oil spill -- lisa

jackson. >> i asked the panel to rise. with regard to the testimony will provide to the committee on transportation and infrastructure today and all subsequent communications, do you solemnly swear to tell the truth, the whole truth, and nothing but the truth so help you god? you are sworn in. truth and nothing but the truth so help you god? you are sworn in. i will begin with dr. earl in recognition of her longstanding commitment to another event and that she has to catch a flight, which is hard to do tse days in washington. dr. earl, your testimony, i read all the testimony last night. it was positively lyrical. i recall your presentation at an aspen institute conference 12 years ago. i was enthralled by your love of

the ocean environment, your grasp, your understanding, your intimate understanding of it all. and there's a portion of your testimony that reminds me of lord byron's epic poetry in which he describes the ocean as deep, dark heaving, mysterious and endless. deep and dark it is. aving when there is a powerful storm. mysterious, we are beginning to understand the mysteries of e ocean, thanks to your work and that ofothers. we are understanding that a calf sperm whale born at t same time of discovery of these oil wells can outlive them only if

we let it. but endless environs where it is not, you are going to describe for us the ends, the limitations. please begin. push your button so we can hear you. and bring the microphone closer. jimmy? somebody make sure the microphone is working? >> thank you chairman oberstarr,

members of the committee, all assembled here. you've seen plenty of bad news, bad news images relating to the deep water horizon oil spill. with some images that will be shown while i speak, i want to illustrate that the gulf of mexico is not as some believe an industrial wasteland, primarily valuable as a source of petrochemicals, a few species of ocean wildlife that humans exploit for food, for commodities and recreational fishing. there ar other assets, and i hope we'll soon be seeingome of them. they were documented during a five-year project with the national geographic with noaa and the goldman foundation and a partnership, too, with members of about 50 organizations, industry, private institutions and others. dozens of scientists from around the country w explored the

coastline of this country from 1998 through 2003. for more than 50 years, i've had experience on, around, under and over the gulf of mexico as a marine scientist and an explorer. i've started and led engineering companies devotedo the development of equipment for axis to the deep sea. and i've served on a number of corporate and dozens of non-profit boards. and from 1990 to '92, served as the chief scientist of the national oceanic and atmospheric administration and had an up close and personal experience with the "exxon valdez" spills as well as extensive evaluatio of the environmental consequences of the 1990-'91 persian gulf spill.

so i really come to speak for the ocean. the gulf of mexico is a big blue bo of water as a trinational treasure better known perhaps for yielding hurricanes, petrochemicals shrimp and in rece years,otorious dead zones than for its vital role in generating oxygen taking and holding carbon, distributing nutrients, stabilizing temperature, yielding freshwater to the sky that returns as rain. contributing to the ocn's planetary role as earth's life support system. as with the ocean as a whole, the gulf of mexico is mos vaable for those things that we tend to take for granted. at least we could take them for granted until recently. we now understand that there are limits to wh we can put into or take out of this or any other rt of the ocean without

unfavorable consequences back to us. ironically, fossil fuels have powered civilation to new heights of understanding, including awareness that the future of human kind depends on shifting to energy alternatives that don't generate carbon dioxide and otherwise cause planet threatening problems. think about it. fossil fuels have taken us to the moon and to the universe beyond. made it possible for us to see ourselves in ways that no generation before this time could fathom. provided the backbone of the extraordinary progress we enjoyed in the 20th century and now into the 21st. but we now know that those of us alive have participated in the greatest era of discovery and technological achievement in the history of human kind, largely owing to the capacity to draw on what seem to be cheap but, by no means, endless soue of energy.

at the same time that we have learned more, though, we have lost more. cheap energy, it turns out, is costing the earth. despite the enormous advances in knowledge, the greatest problem that we face now with respect to the deep horizon oil spill is ignorancend with it, complacency. i mean, it seems baffling that we don't know how much oil is actually bng spilled. we don't know where the oil is in the water column. we can see from the surface we don't know what's below the surfe. we haven't seen what it's actually like on the bottom at 5,000 feet in the gulf of mexico. we have glimpses. some of the glimpses of what's as -- what's in as much as 2,000 feet of water are being shown on the scree as i speak.

but our access to the sea at is critical point in history is sorely limit ed. i only have a few minutes for my remarks. so i'm going to skip through the- some of the testimony that i'm submitting for the written record. and dive into some of the key sues that i want to focus on. many questions have been raised, and i'll raise them again about the use of the dispersants that really are more cosmetic than helpful in terms of solving the real problems. if i could speak for the ocean, i would say halt the use of subsurface use of dispersants and limit surface use to strategic sites where other methods cannot safegud coastal habitats. the helines lament oil birds,

oil beaches and oiled turtles, dolphins and whales as they should. but where's the constituency concerned about oiled kopapos, some of ose creatures that are heavy lifters with respect to generating oxygen and driving food webs in the ocean. the diatoms, jellies, terrapods, the eggs and the young of this year's vital offspring of tuna, shrimp and menhaden. not only i the unruly flow of millions of gallons of oil an issue but also the thousands o gallonsf toxic dispersants that may make the ocean look a little better on the surface, where most of the people are, but make circumstances a lot worse under the surface where most of the life in the ocean actually is. cosmetic cures do not solve the problem.

they are almost certainly making matters worse forife in the ocean. another issue, we should be prepared, and i gather that noaa and others areesponding to the need to deploy available subsurface technologies and sensors as well as those a the surface to evaluate the fatef the underwater plumes of oil as well as the finely dispersed oil and chemicals and their impact on floating surface forests of sargasm communities, life i the water column and on the sea oor. there needs to be immediate gathering of baseline data both broad and detailed to measure impacts and recovery. there must be salvage operations to restore the 40 or s species of affected large wildlife

creatures and their habitats. but perhaps at least as significantly there must be initiatives to create large reserves in the gulf to facilitate rovery and ongoing health of the thousands of less conspicuous species of -- and the marine ecosystems from the deepest areas to the shallow shes. it's urgent that large permanently established areas in the gulf of mexico be designated for full protection from extractive activities. their deep coral reefs and the flower garden banks, the closest shallow coral reef to where the present spill is taking place. protected areas are critically needed to safeguardmportant spawning areas for bluefin tuna, for grouper, snapper, sharks and even the wiley species of shallow and deepwater shrimp.

aside from the importance of such areas for healthy ecosystems to survive, they are essential ifishing is to survive, to continue as a way of life in the gulf of mexico. after all, if there are no fish, there are n fishermen. and already, owing to the heavy fishing pressure in the gulf of mexico as in other parts of the world, the populations of fish that were around when i was a kid exploring the gulf of mexico are now depleted by as much as 80%, groupers, snappers. some species by 90%, such as the sharks. bluefin tuna and others. implementing and expanding the proposal called islands in the stream. a concept long ago proposed by noaa for a network prove techs in the gulf would be a great

place to gin. the need to be better assessment so the economic impacts and the modes of compensation for the present oil spill and for future problems. the heart research institute at texas a&m at corpus christi has put a figure of known economic consequences at about $1.6 billion. that does not take intoccount the free services of -- that are being affected but for which compensation is not being proposed but perhaps by suggesting that there be protected areas in the gulf of mexico as a way to restore and enable the oan itself and life the ocean to recover unimpeded by other impacts would be a gooplace to, in a sense,

compensate the ocean for the problems that have occurred. surely we must make substantial investments in the development of technologies that can help solve the problems and assess the problems. investments in human occupied, robotic and autonomous systems that go in the water, under the ocean, not just at the surface. there must be sensors and stations for explotion research, monitoring and safeguardi the living ean. you think about it the u.s. coast guard, noaa, the epa, the navy, they all have aircraft. they all have ships. but what is -- what is in the national fleet that willake us unde the sea? we've already this year seen the loss of two underwater systems that are not being supported any

longer by the harbor branch oceanographic institution, the johnson sea links that for years have provided access down to thousand meters 3,000 feet or so, since the 1970s. the alvin bmersible, the workhorse of the submersibles for scientific exploration since 64 is about to be retired. it will be retired before its replacement is ready to go. meanwhile, japan, russia, china and france have systems, manned systems that can go and make observations to at least half the ocean's depth and no nation has a system that can go back to full ocean pth. a visit there to place only once in 1960, 50 years ago, forbout half an hour in the marianna ench. how many systems can go to 5,000 feet with human observers. right now, it's a handful.

and only the alvin in this country really qualifies. the pisces subs have been in that league, but we're woefully unprepared to send anybody down to just take a look to be able to evaluate with more than just a camera system as good as they are. and where are the facities that you can pull off the shelf fo the coast guard to go down, for ample, to evaluate on their own, n necessarily relying on industry provided systems. industry does have a fleet of remotely operated systems. they need them for inspection, for moniring, for maintenance and repair. t the ocean itself needs to haven understanding tha is currently lacking for lack of the technology vestment. we put billions into what takes us into the skies above and it's paying off handsomely. we've neglected the ocean and it's costing us dearly.

so phaps this is a wake-up call. a mighty 2 by 4 to alert us to the needs t seriously commit to the technologies for going deep into the sea. weeed to embark on expeditions to explore deep water as well as the near shore and shallow water systems in the gulf of mexico and elsewhe in our coastal waters. if you look at the nation's exclusive economic zone, it's larger than all the rest of the united states puttogether. there's another whole country outhere under water and a lot of it isn deep water, presently inaccessible by means that we have at our disposal. consider back to the coast guard and there is an agency that we call upon when there an emergency, but it's not only not being provided with aquate technologies to deal with what goes on under the surface of the

sea, but to see a budget cut this year while the other agencies and the military have received boosts. it doesn't seem reasonable, especially in light of the needs that are growing. speaking like an ocean, speaking for the gulf, we need to encourage tri-national support and collaboration among scientists and institutions around the gulf to invest the good minds that are there, to come up with solutions that are not just divided by national borders, mexico, cubeaba, the united states, but really taking to account the entire system. we need to mobilize those good minds to address those situations like the mexican summit that took place five years ago that helped launch a regional governance of u.s. and mexican states. a new summit is being planned by the hart research institute to take place later this year to address next steps to ensure that assure an economically and

ecogically healthy gulf of mexico can be developed in future years. cuba is a countryha some of us have been worrying about with respect to the possibility of oil spills heading north as exploration and drilling of picking up in that country, and now they are faced with worries about the consequences of this major spill from the united states heading south. and while we are investing in rapid expansion of safe energy alternatives that do not result in t release of carbon dioxide, new standards of care need to be implemented for industries extracting oil and gas from the gulf and elsewhere in u.s. waters. think about it. the public needs to know what actually it is like out there in the deep waters of the gulf where activities are taking place. thorough documentation of the nature of the sea floor showing

those deep coral reefs, showing the nature of life in the water column, in the whole area around where operations are taking place should be made public before operations such as drilling, establishing platforms and laying pipeline and so on take place. and the changes in the environment measured and made publicly available. it's not tha we shouldn't be doing these things but we should know what the costs really are. the eironmental issues need to be taken into account and be the basis when necessary for to protect vital environmental concerns. >> dr. earle. >> two minutes. one minute. >> i'm going to have to limit you to oneminute. >> this is my -- >> in your own intert s that you can -- >> well, it's not enoughime to touch on all the concerns, but the biggest problem boils down to complacency that comes from ignorance. we are pointing to bp,

transocean, to cameron, to governmentagencies,nywhere we can for blame. but actually, the blame forhis and other catastrophes or costs related to our demand for cheap energy is something that all of us need to bear. we all must share the cost of those who demand cheap oil at anyprice. the loss of human lives, the destruction of the life-giving gulf, simply cannot be justified as an acceptable cost of doing business. but if we really do go forward, with a commitment to do things differently, henceforth, we will have gained something of enduring value. we must do better about thinking like an ocean andhinkg on behalf of those who will benefit or suffer from the consequences of our actions.

cheap energy is notnly costly in terms of human lives lost, it's also costing the earth, so to speak. it's clearly costing the ocean. thank you. >> thank you very much for a very moving, compelling testimony. the only voice for the ocean that we will hear. and i am so in harmony with your views aboutooking in outer spe for life in water. i frequently refer to that. we spent several billion dollars looking for water on mars. we started o looking for water on the moon. and recently, i watched the science channel project on europa, one of jupiter's moons

where there is speculated to be water below the surface. and finding some sort of space vehicle that will go down punlue into that suurface and find there is water. and then that raises the next question, whether there is life in that water. we've got it right here on earth. >> yes. >> it's right in front of us. right at our doorstep in the gulf. 660,000 square miles of it. and you illuminated the bacteria, phytoplarchthon, microorganisms that make a rich life eironment but yet within that ecosystem, we've lost numerous species. what will be the effect of this spill? much of it will be beyond our vision, beyond the human eye or even ability to detect as you have so well described it.

d you reference the dispersan approved by epa to make the ocean look better. but as you say, it warns -- there's a warning that there was a skin and eye irritant and it's harmful if you inhale it, can cause injury to red blood cells, kidney or liver. there are 15 of these diersants approved by the national contingency plan. to the best of your knowledge, has any of these dispersants been tested onhe flora or phona the gulf waters? >> i'm not aware that they have or have not. >> what is your best scientific guess that if these -- if the organisms of the -- those upon which higher life depends are

exposed to this substance, what happens to them? >> that is the question that should be addressed. the kinds of tests that are typically done are on specific kinds of animals. i have not seen the reports of the very -- the list that is now being approved. but the reports on the dispersants ud for the exxon valdez suggest tt it's not good for contact with humans, it's not good for conctith the creatures that live in the sea. >> at the briefing in the command center, we were told that the -- it takes roughly four hours from the -- for the

oil to make the journey from the bottom, from the mud bottom of the sea floor to the surface. the dispersants are being injected at thepewing point of the well. but the dispersants take oy two hours to get to the surface. and there was speculaon by adral landry and others in the command center whether the dispersants really are having an effect upon the oil column as it rises to the top if it's getting up there faster than the oil. >> i think the problem is that we're dealing with speculation. we need some real answers. and not to know is not acceptable. we need to be able to access the water column, to go out and see for ourselves both with remote systems, with cameras if you will, and ideally to be able to

go in small submersibles go out to where the action is, go into the water column, observe what's happening. sample what's there. it's right nowecause of the ignorance factor, it's easy to gloss over whatctually m be happening. >> very sobering thoughts, and there are other questions i would like to explore with you, but i know you have to catch a flight. m going to ask mr. cao for any questions or comments he might have. >> that's really my concern, like yours, centers onhe effect of the dispersan on the wildlife as well as on somef the species, as you said in your report. but as of right no the only datahat you actually have are the ones tham the "exxon valdez" and none her? >> other information is available. it is not available to me as i

speak here, but the -- the role ofispersants across the board is to break the oil up into smaller pieces. some of the chemicals used for this are more toxic than others. but none of them are exactly a recipe for good health for creatures who live in the sea. >> you mention that we have to invest in creating, inventing new deep water submersibles. how far are we if we were to invest money to develop such a vehicle that it can go down to the deepest part of the ocean floor. >> the technology exists. the oceanographic instution deployed ts past year in 2009 a remote operated system that

we toull ocean depth seven miles down on nine different occaons. the cost of deploying it is expensive. and it is the only one in the rld that exis. so the technology is there. there are no human occupied systems that can go to full ocean depth, although the technology exists. it did est 50 years ago. consider where we were with aviation and space technologies 50 years ago. as compared to where we are today with access to the sea for us and for our instruments for our sensors. we've come a long way. but when an issue of this nature comes up, why do we not have off the shelf capability for the coast guard, for noaa and for othersho might be able to not

just go out and help with the evaluation of what ishappening. how can we not know how much oil is being releas? how can we not know the size of the problem? we're dealing from the surface to try to access what is largely a subsurface issue. and what about tracking and following the aftermath and where is the before evidence? actually, investmentas been made by scientist over the last half century in trying to understand how many kinds of creatures live and where they live in the gulf of mexico and elsewhere. new volume jus came out in 2009 that was the result of efforts by more than 100 scientists. they found well over 15,000 species of organisms living in the gulf of mexico. these are in a volume that is about five inches thick and that

has just been published by texas a&m. and it is evidence of what's there. but we need some baseline data that very specifically looks at what was it like before the spill. what is it like now. what would it be like now. what can we learn from it and what actions can be taken to restore health to the areas that have been affected. not just compensation for the fishermen or for the loss of revenues to today's business operations throughout the gulf of mexico, but what about the loss to the gulf itself that would be pain far down the line for future generations as well as present ones. >> thank you, and i yield back. >> mr. chairman, i'll be very

brief. thank you for your -- all of your efforts and for your work over the many years. and i am sure, as i listen to you, i couldn't help but think that when youearbout these plumes and you think about the 5,000 to 70,000 barrels of oil going into the ocean on a daily basis, that must make your heart ache. i'm sure. and i saw the pictures there, i was just -- i guess there's absolutely no doubt in your mind that substantial damage has probably already been done. you think so? >> what's amazing to me is that the gulf is as resilient as it has been in the face of thousands of wells that have been drilled and that operations, the shipping on the

surface,he heavylarge-scal fishing operations that have taken place. there's still plenty of reason for pe. the ocean is still resilient and the gulf of mexico is almost a laborato of resilience to show how some of these sophisticated operations can take place side by side with the productive kind of ocean system, not what it was a thousand years ago or even a hundred yes ago. but still, a viable productive system. but there are limits to what we can get away with and still have fish prospering, still have the spawning area for the western atlantic in theestern gulf of mexico. there are such things as going too far. we killed the last of the munk seals that once proser iffed as far north at galveston, texas. all gone from the caribbean sea.

they were killed largely for their oil and for their meat. treated as commodies. >> one other thing and then i'll be finished, mr. chairman. you d spoken about theoast guard and i'm chairman of the committee -- subcommittee that oversees the coast guard. you are absolutely right. at this critical moment, there's no way that we should be cutting the coast guard budget, and the chairman has been very adamant about that on a bipartisan basis we've been advocating to make sure that we have those funds. but we also -- and i've been just pushing to try to make sure the coast guard is even more a part of the process of overseeing some of these situations so that hopefully they will -- ts kind of thing will, if it happens, we can address it more effectively and efficiently and quickly.

but i really appreciate it i'm sure the coast guard appreciates your comments. and with that, mr. chairman, i'll yield back. >> thank you. mr. cobel. >> no question. >> mr. duncan? >> no, thank you, mr. chairman. but i know we need to g on t e her witnesses so i'm fine. >> mr. schuller passes. dr. earle, thank you for those insights, for your understanding, for your love of the ocean and for the lyricism of your presentation. you may be excused. >> thank you. >> a administrator jackson, great to have you with us. thank you for your leadership in so many arenas with the epa and restoring its voice and its compass in leading us toward a clean environment.

please begin. >> thank you, chairman to the chairman, ranking member micah and members of the commite. thank you for inviting me to testify about epa's role in responding to the bp deep water horizon rig explosion, but first let me express my condolences to the families of those who lost their lives in that explosion. we owe them our very best efforts, whether it be in the response or in the investigation. while there is no perfect solution to the environmental disaster that the gulf of mexico is facing right no epa is committed protecting our communities, the natural environment and human health. that commitment covers both the risk from the spill itself as well as any conces resulting from response to the spill. in the last three weeks, epa has dispatched mor than 120 staff, scientists, engineers and contractors to alabama, florida, louisiana and mississippi to perfor rigor testing and monitoring of air and water quality. we are tracking any possible adverse impact stemming from

controlled burning of surface oil, possible chemicals rising from the oil itself and issues causedy the use of dispersants. we are working with sta officials, with local university scientistsnd other federal agencies to get the best available data, share that data in a timely fashion and to ensure proper response for the gulf coast people and their environment. at t president's diction, i have personally travelled to the region, the region i grew up in and still consider home twi over the past weeks to personally oversee epa's efforts and to meet with the local community to ensure their questions and concerns are addressed. for weeks, a responders have been monitoring air pollutants, including particulate matter, hydrogen sulfite and total volatile organic compound or vocs from the oil in the gulf as well as the controlled burning of that oil. these pollutants could pe a alth risk to local communities and this monitoring is essential to ensure that communities are protected as bp takes direct

response actions. epa is also monitoring water quality by conducting surface water testing along the gulf coast. both in areas that have been impacted and those not yet affected. all of this information is being made public as quickly as we can compile it. have been posti regular updates to o web page, www.epa.gov/bpspill. which has been a critical resource since the beginng of this event. a primary concern is to ensure the safe applicati of chemical dispersants. oil dispersants are chemicals applied to thspilled oil to break down the oil into small drops below the rface. ideally, dispersed oil mixes into the water column and is rapidly diluted, bacteria and otr microscopicrganisms tn act to degrade the oil within the droplets. however, in the use of dispersants, we are faced with environmental trade-offs. we know that surface use of

dispersants decreases the environmental risk to shorelines and organisms at the surface and we know that dispersants break down over weeks rather than remaining for several years as untreated oil might. but were also deeply concerned about the things we do not know. the long-term effects on aquatic life are still unknown and we must make sure the dispersants that are used are as nontoxic as possible. we are working with manufacturers with bp and with others to get less toxic dispersants to t response site as quickly as possible. epa has previously authorized use of several dispersant chemicals under the national contingency plan, in order to be places on this list, each dispersanthemical must undergo a toxicity and effectiveness test. however, i am increasingly concerned that epa can and should do more. as we emergerom this immediate response, i commit to reviewing the regulations regarding

dispersant registration and listing and chairing the results of that work with this committee. on friday, epa and t on-scene coordinator authorize the applicatn of dispersant under water at the source of the leak. the goal of this novel approach is to break up and degrade the oil before it reaches the water's surface and comes closer to our shorelines, our estuaries and our fish nurseries. based on our testing, this can be done by using less dispersant that is -- than is necessary on the surface. but let me be clear that epa reserves the right to hold the use of subsea dispersant if we conclude that at any time the impact to the environment outweighs the benefit of dispersing the oil. as with our other monitoring initiatives, epa and the coast guard have instituted a publicly available monitoring planor the subsurface dispersant applicion to uerstand impacts to the environment. this data is coming to epa once a day.

and if the levels in the samples are elevated, epa will reconsider the authorization of dispersants. epa is also preparing to support y necessary shoreline assessment and cleanup by identifying and prioritizing sensitive resources and recommending cleanup methods. ep in accordination with the states will continue to provide information to the wkers and public about test results as well as assisting communities with potential debris disposal and hazardous was issues. chairman, as a native of new orleans, i know firsthand the importance of the natural environment. to the health, economy and culture of the gulf coast. as i mentioned, since the accident, i have been to the region twice. i've ltened to people in numerous town halls from venis to waveland, mississippi, and other communities in between. i have learned in those meetings that the people of the gulf coast are eager to be part of this response. they want to be informed and, where possible, emporeto improve their own situation on

their own. we have a great deal of rebuilding to do both in material terms a in terms of restoring this community's trust at goverent can and wil protect them in a time of need. this is one o those times. i urge that we do everything within our power to ensure a strong recovery and future for the gulf coast. epa will continue to fully support the u.s. coast guard and play a robust role in monitoring or responding to potential public health and environmental concerns as local communities assess the impact on their economies, epa, in partnership with other federal, state and local agencies will provide all assets to assist in the recovery. at this time, i'll welcome any questions you have. >> thank you very muchor your presentation, and administrator lubchenko icompliment you on your presentatio on the news hour the other evening. i thought you answered the questions exceedingly well with great balance and apparent command of the subject matter. you may proceed. >> thank you, mr. chairman.

and thank you for the opportunity to testify before this committee on the department ofommerce's national oceanic and atmospheric administration's role in the response to the bp deep horizon oil spill. i especially want to focus on the critical roles that noaa serves ding oil spills and the importance of maximizing our contributions to protect and restore the resources, communities and economies affected by this tragic event. i'd like to begin by expressing my condolences to the families of the 11 people who lost their lives in the explosion and nking of the deep water horizon. this is a difficult time and our thoughts are with them. noaa's mission is to understand and predi changes in the rth's environment to conserve and manage coastalnd marine resources to meet our social, and environmental needs. noaa say natural resources trustee and is one othe fedel agencies responsible for protecting and restoring the public's coastal natural resources when they're are affected by oil spills or other

hazardous substance releases. the entire agency is deeply concerned about the immediate andong-term environmental, economic and social impacts to the gulf coast and the nation as a whole as a result of the bp deep water horizon oil spill. noaa's experts have been assisting with the response from the beginning of this spill, providing coordinated scientific weather and biological response services. offices throughout the agency have been mobilized and hundreds of noaa personnel are dedicating emselves to assist. over the past few weeks, noaa has provided 24/7 scientific support to the u.s. coast guard in its role as federal on-scene coordinator both on-scene and lou our seattle operation center. this noaa-wide support includes twiceaily trajectries of spilled oil, information management, over flight observations and mapping, weather a river flow forecasts, shorelin and resource risk assessment and oceanographic modeling support.

noaa has bn supporting the unified command and planning for open water and shoreline remediation and analyses of various techniques for hand ling the spill, including open water burng and surface and deep water application of dispersants. hundreds of miles of coastal shoreline were surved to support cleanup activities. noaa's national marine fisheries service is addressing issues relating to ne mammals, sea turtles, seafood safety and resources which includes the closure of commercial and recreationalishery in federally protected waters of the gulf and updating the dimensions of the closure to ensure fisher and consumer safety without needlessly restricting productive fisheries in areas not affected by the spill. as the lead federal trustee for many of the nation's coastal and marine resources, the secretary of commerce, acting through noaa is authorized pursuant to the oil pollution act of 1990 to recover damages on behalf of the public to address injuries to natural resources resulting from an oil spill.

opa encourages compensation in the form of resration and this is accomplished through the national resource damage assessment process by assessing injury n service loss and developing a restoration plan at appropriately compensates the public for the injured resources. noaa is coordinating the damage assessment effort with the department of the interior as a federal co-trustee as well as the co-trustees inive states and representatives for at least one responsible party, bp. the event is a grave reminder that spills of national siificance can occur, despite the many improvements that have been put inlace since the passage of the oil pollution act. although the best remedy is prevention, oil spills remn a grave concern given the offsho and onshore oil infrastructure pipes and vessels that move huge volumes of oil through our waterways. to mitigate environmental affects of future spills, responders must be equipped with sufficient capacity and capabilities to address the challenge.

response training and exercises are essential to maintain capabilities. continuous training, improvement of o capabiliti, maintenance of our capacity and investments and high priority response related research and development efforts will ensure that the nation's response to these eventsemains effective. training and coordination with other federal, state and local agencies that might have response and restoration responsibilies is critical to suess in mitigating efforts of future spills. there are a number of improvements to our ability to quickly respond to and mitigate damage from future spills that would benefit the nation. one such activity is increasing r response capacity. if another large spi was to occur simultaneously in other location in the u.s., noaa would have difficulty providing the level of response expected. we would be happy to identify specic difficulty coordinate lel of response expected and we would be happy to share the effectiveness ofhe response. our activities have been aggressive, strategic and

science base and i assure you we will not relent in our efforts to protect the livelihood of gulf coast residents and mitigate environment impacts of this. it thank you for allow meg to testify on noaa's response efforts and i am happy to answer your questis. >> we appreciate your teimony. thank you very much. miss birdbaum from the material management. >> i want to express how sad we from the mmstaff are about those who lost their lives from the deep water horizon. many mms employees have worked their entire career in anffort to keep this kind of thing from happening and we will not rest until we determine the causes to do everything possible to reduce the chance of it happening again. all leasing and operations on the federal offshore are governed bylaws and regulations

to ensure safe environmental operations. the authority to regulate oil spill planning is derived from the oil pollution act 1990. mms regulations require all ocean operators of oil handling or transportation facilities submit a oil spill response plan to mms for approval. under the regulations an offshore lessee is required to submit it to mms for approval before or at the same time as submitting an exploration development plan for review. they must outline availability of cleanup equipment and trained person yell and ensure full response capacityan be completeduring an oil spill emergency and varying degrees of response effort depending on the severity of the. it mms reviews and approves these plans every two years unless there is a significant plan that the plan be revised immediately. changes that would trigger a review is a change to the plan that reduces ability to respond

or change in worst case discharge scenario. bp's regional tha covered the deep water hizon was first issued in december 2000 and last issued december of 2009. it indicated a worst case discharge of 250,000 barrels per day. bp's estimate for the worst case discharge for the well-being drilled by deepwater horizon was up to 263 barrels per day because it fell below the regional levels of the sorp. they were not required to submit specific site sorp. they submit one to ensure managers and spill operating teams and other contractors are familiar with the plan. training includes annual reporting on spill reporting procedures, deoyment strategies for response equipment, oil spill trajectory

analysis and any other thing need to respond to a skill. to test preparedness, mms conducts unannounced exercises, prepared a spill scenario, using data from the operator approved plan, without notification initiates the drill without esnating a pre-designated point contact. they must fly notify the response staff as if there was an actual event taking place. mms must also require the deplment of operation of spill vessels or dispersement aircraft. in t gulf coast region, mms conducts 12 or 15 such exercises annually. nce 1994, they conducted six on bp, the most recent ill, november of 2008 was skimming vessel deployed to respond to the drill. and they maintain omset. the renewable energy test research facility in leonardo,

new jersey where operators test for oil spill under saraing conditions. it is the only place where oil spill response, research testing and training can be conducted in a marine environment with oil under colorado array of wave and oil conditns. the facilitate provides an environmentally safe place to develop testing and provide unique tests for a variety of oil spills. this completes my prepared statement. i'd be happy to respond to prepared questions. >> thank you for your testimony. i understand the next two witnesses are going to split their time. is that correct? >> we'll go quickly, sir. >> admiral, you may proceed. >> thank you, chairman and distinguished members of the committee. i apprecie the chance to appear before you together with my colleague, the deputy national incident commander. the two of us will discuss the loss of the offshore drilling unit, deepwater horizon and

response to the skill. in my role, i oversea strateg integration of operaonal missions and policyor mission execution. it's from that perspective i appear before you today. this event began with a fire and explosion on-board the deepwater horizon. the coast guard is, among many other things, a life saving service. saving lives is at the core of who we are. on behalf of the coast guard, i would also like to express our sincere condolences to the families of the 11 workers who did not survive the event. i wouldlso like to acknowledge in grateful appreciation the swift response of the crews of the offshore supply vessels operating in the immediate area, in particular the motor vessel damon b. blankston and offshore vessel tide water marine who recovered the bulk of the survivs that evening. coast guard aircraft and cutters conducted searches of the area lasting several days, despite

our best efforts, none of the missing crewembers were recovered. the deepwater horizon was a foreign flag mobile offshore drilling unit however the crew is comprised of u.s. citizens required for operations on the outer continental shelf and required to have a certificate of compliance issued by the coast guard before it was allowed to operate. the most recent certificate of compliance was issued in 2009 and dow remain in effect until 2011 and there wereo outstanding safety deficicies. the coast guard shares jurisdiction with the minerals management service in the regulation of offshore activities. the coast guard has the lead for the rig, vessel, heart of the system itself, whereas the minerals management service focuses on driing portion and vital equipment associated with drilling. weave yet to establish the reasons for the casualty, to understand what has happened y the coasguard and mms are jointly conducting marine board of investigation. the investigation will look into the adequy of federal

regulations as they pertain to bile offshore drig units and outer continental shelf activities. with respect to the oil response, this is a spill of national significance. sie the mid-1990s, the coast guard and other federal agencies have conducted exercises every three years, based on spill of national significant scenarios, to make sure we have the right framework and capabilities to manage a sll forhe whole of government approach. the most recent exercise occurred one month prior to the tragedy. many coast guard person whole participated in that exercise are now engaged in the actual response. nevertheless, there is much to learn from this casualty. the coast guard intends to charter a specific preparedness review to focus o adequy of contingency plans and response efforts. such a plan is common after a major indent and used to prepare for future events. thank you, mr. chairman. i look forward to your

question questions. >> good aftnoon mr. chairman y chairman cummingsnd distinguished members of the committee. as admiral salerno, i am the deputy commander for the deepwater horizon gulf oil spill, appointed following secretary napolatano designating this of national significance. it's to insure preparation of necessary rourc and facilitate collaborati between federal, state and local governments and coordinate strategic communications throughout the whole of  government. i have a written statement i will submit for the recordnd ke my comments brief in the interest of our split time. with when the deep horon sank on the 2nd, it caused an

complex problem where we must rely on remote tools to stem the flow and source of the spill. as you heard, to meet this challeng there is a very large organization, unified commands that stood up at the regional and massive level and all initiatemaive response to the spill. that is led by rear admiral mary landry and nationally by admiral that allen as national incident commander snfrpt the unified commands implement the area contingency plans, strategies and responsibilities previously agreed upon by stakeholders and prioritize cleanup sites for booming and other staging resources. these resources are directed to appropriate areas depending upon projections of the spill and wind and sea states and requires monitoring and modelingn scene we do with our colleagues from

noaa and epa. bp is the responsible party and are responsible to respond with sufficient oil spill response capability. as noted, they're responsible r cleaning up the oil, remediating the damages and restoring impacted natural resources. as the federal law on see coordinator, we insure bp meets constant oversight and direction and we will connue to monitor bp claims process to insure it is robust and fair. the efforts on this response have been extensive and without precedent. as of today we recovered over 7.8 million gallons of oil-water mix applied, over 600,000 llons of surface dispersants and deployed nearly 1.4 million feet of boom, staged another 380,000 feet of boom and there is another 1.4 million feet on order and arriving shortly, with over 20,000 people and some 10,000 or 1,000 vessels

responding. we understand the iacts of this spill on the nation and loca communities. i have personally visited the gulf region and spent many days in the last few weeks, overflying the spill sites and meeting wh local officials and affected populations and observing first hand tryg to protect envonmentally sensitive areas in local communities. we will continue coordinating the aggressive government response to this spill while insuring bp meets their obligations. this incdes the recent establishment of a working group of scientists and experts to determin accurately the flow rate and tal volume of oil that has been spilled both to date and expected and that will be guided by a peer review process as well. mr. chairman, i thank you for this opportunity and i welcome any questions you may have. >> the chair wishes to thank the panel for their testimo and a bit of housekeeping, we do have

a series of votes on, on the house floor. i understand you, administrator jackso have to leave, so i would ask -- you do, too, dr. lubchenco? all right. maybe we cano this very quickly and then ask the other three if they would come back for members that have left to vote that i know are coming back to ask questions. administrator jackson let me thank you for having your top staff in st. charles for the spruce mining permit. i won't ask you anything on that. i believe i couldn't tell who they dislike more, epa or me. i appreciate it. it was a chance for people to have their vce heard. let mesk you, many of the response actions taken to date, such as the use of disbursements an surface skimming, of which you've testified t already and placement of floating booms are essentially the same techniques deploy during the response to the "exxon valdez" spill over 20

years ago. we certainly don't expect our military to fight warsith weapons that are outdated and designed 20 to 30 years ago, so why should we expect our fedal agencies to respond to oil spills that use outdated techniques and equipment? >> i couldn't agree more with thesentiment, mr. chairman, which is tha we, as i've been putting it, our ability to extract this oil and use it has far outpaced the investments that we've made in dealing with response and preparedness. >> any other panel wish to answer that question? >> mr. chairman, i would wholeheartedly agree with what administrator jackson said. it's clear the techniques we are using today have really not advanced significantly. it would be well worth and investment to bring those into the modern age.

>> i doesn't take a rocket scientist too tell us something we drasticly wrong i this situation. mate take a rocket scientist to tell us how to plug this well but obviously something went terribly wrong. i guess i would ask a general question to the panel, has deep water exploration for oil gotten too big too fast for its safety britches? how can we ensure an oil spill of this scale and magnitude never happens again? >> i'll try responding to that. >> i don't thk we'll know for sure what happened here until we can actually pull the op stack and termine the end of the investigation will rely on engineering review of that as well as review of witnesses and so on that's already n. untile know that, we won't really understand what's gone wronhere. we are conducting a massive

safety review. the president asked interim salazar to determine what we can institute to makeeep water drilling safer. we are in the process of working on that. the secretary will gethat to the report may 28th. in the meantime, the secretary suspended issuance of new drilling permits for new wells in deep wat pending the completion of that report. so we are examining that safety question, we know it can be made safe and know the nation relies on the oil we get from the gulf of mexico and do everything we can to make it safe and reduce the risk. >> as you know in my other hat as chairman of the natural resources committee, the secretary will be our witness, i requested numerous documents from you and secretary and still waiting response from those as well. that's another issue beforeur committee on natural resources. so we'll wait until then.

as time is short, l me ask -- yes, mr. cummings. >> mr. chairman, i'll be very brief. first of all, thank you all for being here. ss jackson, thank you very much. i was just on down inew orleans over the weekend. they were very complimentary of your agency's efforts. u don't usually hear those kinds of things. i want you to know that. i completely agree with your statement people of the gulf coast want to be informed of the impact of the spill and applaud the commitment of the administration about openness with regard to the spill. on the last panel, questions were asked of bp on its commitment to openness, which is a real key question. can you provide the committee with the assurance you will provide and compel, as to the extent that you can, bp to provide all tests and monitoring results taken in relation to this spill?

>> sir, i'm absolutely happy to. i'll also suggest maybe you want to hear from the national incident command any data that epa has, whether we take it ourselves or comes into our possession because we directed bp to take it, i've directed my staff we will put it up on the website and make it available. we can't always do tha as timely a people would like because we have to go through lab analysis and whatever, but that is our commitment. ve also said andelieve that one of the things bp can and must do is make all the datat is come folde politically available, data as part of the respon. >> one other quick question. you know, my colleague from maryland, miss edwards, and a number of members have asked questions about the amount of oil coming out of this big. it it struck me that it seems

that you all have to rely to a degree on what bp is telling you and others. i'm tryg to figure out, do you feel like you're getting the necessary information you have to get from bp to do your job? i can easily see how, you know, they could underestimate various thingsnd go to a lower end opsed to higher. are you all satisfied with the kind of information you're getting from them >> i would say in general. epa and estimating the flow of oil, that's not within our area of expertise. the are people on the panel who can speak to that specific sue. i think one of the lessons learned from this, in this idea of a unified command, we are directing them to do things, and we are working to get a job done.

but we have a different responsibility as government agencies to make sure we do that with transparency and people have a right to know and understand what we know, as we can give it to them. so i don't direct bp directly. that happens through -- commander and i have infinite respect for that neffenger and that allen. people turn to the government and want too understand that struc structure. >> thank you. i'll direct that to our other witnesses later on. >> miss politano. >> thank you, mr. chairman. it's good to see some of the people we've met before, thank you very much, mr. chair. one of the questions i brought up tohe entire panel is something that is very bothering to me, and i understand there may be some information you might have, miss birnbaum, in regard to number of wells in

deep ocean, how many permits have been sued, whether they're being reewed, checked out for any possible leaks? have there been any incidences, how deep are they? where are they? so there's an ability to understand much more what's haening in the oceans we may or may not know could have a catastrophe in the future? thank you, miss napolatano. excuse me. we define deep water as anything over 1,000 feet below sea level. there are nearly 2,000 total wells in deep water at this time. i have 1988, as of yestery. not all of thosere exploration wells of this type. many of those are production wells, producing oil, which have a very different set of risks, exploration wells are more risky. we have conducted at the direction of theecretary of

the interior an emergency inspection of all of the drling rigs working in deep water. we did that within two weeks of the deepwater horizon incident. >> how deep? >> yi don't know what the deepet one is drilling at. i don't know. >> can you get it? >> i wl get that information for you. our inspectors found a couple incidents of non-compliance, not unusual on an inspecti. we corrected those and begun a separate sweep of the deep water platforms and take longer because they are more complicated facilities and are more of them. we expect that will be completed in july and we will have done a full sweep of everything operating in deep water. >> deep water up to -- do you have any others going beyond the 5,000 range? >> yes, but i don't know the deepest facility. >> would there be ability to identify them where they're at and what their status is? >> absolutely.

we have huge databases of that and can provide that to you? i'd like know where theye at, who's responsible for them in case anything were to happen and what we can do to ensure their safety toy protect our coasts and coastlines. the coast guard has done a great job. i know for years, you've operated under very difficult circumstances. i've been a number of times look looking at the age of your -- i would call them a yacht, i'm not a a going person, to me, anything other than a row boat is a big boat. somehow we may be failing to ensure our coast guard has the sufficient irastructure to deal with many issues. is this going to be deterring from your services of the rest

of the cover? >> ma'am, as you mentioned correctly, a lot of our shngs a aircraft are quite old. and the coast guard has embarked on a very aressive recapitalization program to replace those older vessels, as eluded to by the cirman earlier. there are new ships being built. two new ones have joined the fleet within the last two years, additional ones are on the way now, being built. we will go through a period of time where some capacity is coming offline and it's not a one-for-one replacement. it is part of an overall program to replace that aging infrastructure. the capabilities wre using in the gulf right now, we feel we do have the right capabilities in place to manage the current spill. >> is that for certain?

>> whatev that is. if this spill -- when you surge the number of people you have to surge for a major event like this, it challenges any agency over an extended period of time. the challenge for us would be if this were too on forn extend period of time, is the long term sustainability and the capacity to sustain this over a long period of time. >> certainly want to hear about if there is need for additional assiance. miss jackson, i want to thank you personally for the great work your district in the west does for us and other areas. thank you, mr. chairman, i yield bac back. >> do you have any questions of the dr. lubchenco or administrator jackson? >> yes, mr. chairman. may i be recognized? >> yes. we are out of time on the floor but 152 have now voted. administrator jackson, what

is the epa's role of oil scks that they indicate maye an enormous environmental problem and how complete is the epa's understanding ofhe size and number of these oil slicks as ll as their potential effect on the environment? >> sir, in the interest of time, i'll defer to administrator lubchenco because epa has a very all role i marine environments. if this spill had happened on land, epa would actually be running the response unless the president appointed a commander, as he has done here with the coast guard. in terms of the science, they are science advisoadvisors, espl on issues of where the oil is and where it might go. >> congressman, would you like me to respond? >> yes. >> we've been -- i think it's fair to say we've mobilized all of our resrces to track all of the oil and understand where it is. it's much easier to do that at

the surface than it is to understand where the oil is below the surface. is is an unprecedented event in that rega. there is much more -- much less of the oil at the surface, and what we are doing -- so it's a challenging issue. and what we are doing is tackling it in three different ways. we are running a series of ocnographic models of how the water moves at different depth is in the gulf,o understand where the oil is likely to go at different dept, both when it comes up from the leak as well as the oil that mig have been submerged with disper sants, so models, and we have been employing the noaa aircrafto dropnstruments into the ocean

to take data on the way down, to give us better sense what's happening at different depths. three, we've been mobilizing research ships to go out and physically take data, deploy instruments, and get a better sense. we're in the early stages of doing that and we do not have a comprehensive understanding, as yet, of the full extent of where that oil is. we are devoting all posble resources to understanding not only where it is, but what its impact might be. >> does the amoun of oil flowg from the breaches affect your analysis of the oil beneath the surface? >> no, congressman, they don't. it is important for us to understand whathe total volume of flow is, but both the mitigation efforts as well a our efforts to analyze where it is are not contingent upon a

precise estimate. from the outset, we've assumed the spills signifintly large and without scific really concrete precise estimates, we've made every effort to hope for the best, but depy resources, assuming it's a lot larger. >> thank you. >> thank you, administrator jackson and dr. lubchenco. we appreciate your being with us. >> thank yo mr. chairman. >> >> all they have got to offer is the same old economic policies that created the mess to begin with. >> the head of the democratic national campaign committee on the midterm elections, today on "newsmakers."

>> in some ways every [unintelligible] as you a sense of what the country is thinking at that moment. >> terence samuel looks behind the institution of the upper house of the u.s. senate. tonight on a "q&a." >> now for the first congressional hearing with the owner of the west virginia coal mine that exploded in april, killing 27 workers. he testified during the second panel of this senate appropriations subcommittee hearing. this is about to have ours. -- to end a half hours. -- two and a half hours.

>> the tragic loss of 29 lives and the two serious injuries at the big branch mine in west virginia is what brings us together this afternoon. our hearts and prayers go out to the families, co-workers, and friends. as the son of a coal miner i feel they're lost. while upper big branch was the catalyst we understand that investigations into this disaster are under way. we will not ask the witnesses to comment on anything that could hinder the investigation. we will discuss how we can improve the safety and health of our nation's miners. this subcommittee has taken a lead over the last couple of years, adding resources to the budgets of federal agencies charged with at this critical responsibility. much of that credit belongs to senator byrd, who asked that we hold this hearing and will be joining us shortly.

he is a true champion for west virginia and coal miners everywhere. the mine safety and health administration over the last couple of years has conducted 100% of its safety and health inspections in the only time in its history. in fact in 2009 the number of fatalities in coal mines reached a low of 18. to put that in perspective, when my father was a coal miner in iowa there were over 3000 mining fatalities every year. the number of inspections went up and so did the number of citations. increasingly operators have chosen to contest those citations rather than pay them. in 2006 they contested roughly 7% for citations. in 2006, 7%.

last year they contested more than 25%. as a result the federal process has become backlogged, a situation that allows repeat offenders to avoid paying penalties. that backlog needs to be reduced. last week they marked a specific supplemental bill to help the commission of labor process more cases in mining operations. we will also hear from the subcommittee of safety and health about research made into communications devices,

exploring the culture safety needed to protect the miners of this nation. these efforts go hand in hand with the work being done on legislation making sure that we have the tools needed to infect it -- effectively enforced the law. we will go into our first panel. i will say at the outset that we have a vote at 2:30. the committee will have to be recessed at that time while we go over the cloture vote but we

will come back and resume our sitting shortly after. we have two panels today. i will introduce all the witnesses and then result -- bring in the witnesses. joseph maine, assistant secretary of labor for mine safety and health. he began working in the lines in 1967. 1974 he began his career at the united mine workers of america. 1982 was appointed administrator of the health and safety occupation apartment. -- department. patricia smith has served as a new york state commissioner of labor and prior to that served as chief of the labor bureau in the attorney general's office, a position she held since 1999.

dr. john howard has served since 1992. prior to this he was the chief of occupational safety and health in the california department of industrial regulations. mary lou jordan has served on them not -- mining health and safety commission review board since 2009 and chairman from 1994 to 2001 and commissioner from 2001 to 2009. we welcome you all here. thank you for your written statements. i have gone over the mall beforehand. i would ask if you could each as we go down the line some of in five or six minutes the main thrust of your statement i would appreciate that and we could get into a discussion. mr. mayne, welcome back to the committee.

please proceed. >> thank you, mr. chairman. members of the subcommittee, i want to thank you for the opportunity to appear before the subcommittee today and speak of what we have done in the wake of the disaster. i want to again express my deepest condolences to the families, friends, and co- workers of the minors that perished in the big branch mine. i've been holding multiple meetings with the families to understand their concerns and our prayers are with them. a certain number of fatalities is expected every year in coal mining, according to some. in the department of labor we do not agree. we think that the tragedy did not have to happen. i understand that we will be discussing the needs to be more

than money. no matter the resources needed for appropriation, you cannot be in every line, every day, every shift. it is the responsibility of the operators to comply and prevent disease and death, changing the culture throughout the mining industry. only then will all miners be safe. the additional resources that the committee appropriated in the wake of darby and the maricopa explosions and fires made aa important contribution to mine safety in this country. additional inspectors hired have been able to complete all mandated expect it -- inspections. but we need new resources, including new enforcement tools to leverage the capability into meaningful deterrence against

operators that choose not to take responsibility. some of the new tools are directed at creating incentives for operators to prevent fatalities and injuries. our goal is to create a system in which mining operators find and fix violations and abate hazardous conditions. we will impose a rule for pre- shift examinations for violations on health and safety standards on acquiring the list of management programs. improving protection for whistleblowers providing important tools for the dangers and practices as well as violations on fidelity injuries. miners must feel free to identify problems and insist that they be fixed without fear of reprisal. there is subpoena power to obtain information for timely investigations. rules of adjudicated procedures must be strengthened. these include redesigning the

pattern violation program and reducing the backlog at the review commission. we have begun the process of redesigning how it will work in the future and making it more effective. we have asked the commission to expedite review of high priority cases that will help to establish regulations for chronic bad actors. simplifying the criteria. in addition, we will address the backlog by making the citation process more objective and sufficient by enclosing out inspection meetings. my colleague, solicitor of labor, will describe other efforts that her office is undertaking to approve the adjudication cases before the commission. we believe that these measures will have a positive effect on reducing backlog. the president has committed to reducing case backlog and we appreciate the shared priority

and appreciate the recognition of the extent of the funding needed to increase the amount of judges and resources needed for the department to effectively bring cases in that the apart -- department can make the optimal mix for sufficient time to train and employ new staff. they also need the flexibility for enforcement tools when dealing with the worst of the worth. we have limited civil and criminal tools to bring scofflaws the justice. i am gratified that the justice department is pursuing a series of criminal investigations into the events that led to the efforts of the branch mine disaster. we've learned in the wake of the disaster that the resources are not limited to enforcement activities. needing additional tools to mine emergencies. including funding for

investigations, hearings, public forums in the upper big branch disaster. likely to be the most extensive investigation in the history of the unit and is not drawing resources from other critical activities. mmne rescue teams must be equipped to respond effectively when time is of the effort since -- time is of the essence. i saw firsthand the need for better communications during the rescue at upper big branch. including portable testing equipment like gas chromatic raffs to be able to read the atmosphere of a mine and logistical emergency response capabilities in the western united states. another issue is the organizational change in southern west virginia, the area of highest concentration of coal mines in the nation,

splitting into separate management functions. another critical pantry need is the human testing of refuge chambers that minors may need to realize on the emergency that was part of the act. in closing i appreciate the steps of the senate appropriations committee from last week in providing supplemental appropriations for mining safety and look forward to working on the regular appropriations bill. hoping to do everything we can that they can come home safely at the end of every shift. i look forward to working with this committee. thank you. >> thank you. we will now turn to our solicitor, mr. smith. half. . .

>> i thank the committee for their work in moving closer to supplemental funding for the commission. we understand that a single judge can dispose of approximately 500 cases per year. our statistics show that under the current process the

department uses approximately 14 employees for each judge, including solicitor's office attorneys, msah litigation representatives, and support staff. we'll need a corresponding increase in resources. if resources were provided to immediately increase the number of judges at the commission to 26, the senator's office and msah would require roughly additionally 2.6% -- $2.6 million above the fiscal year 27 -- 2010 appropriation. we would need flexibility to adjust rates based on the mix of cases before the commission. also, hiring, training, and deploying attorneys will require time. ideally, we would like any new funds to be made available over periods of time which would enable us to use those funds in

the most cost-effective way. i have gone into great deal -- the tale about what goes into case preparation and explain why -- i've gone into great detail to explain case preparation. we need new tools. the commission published in the federal register of proposed rule on simplified case proceedings. i fully support the concept of simplifying the commission's statutory proceedings. i believe that streamlining the process in appropriate cases will help the solicitor's office and msah use their resources more efficiently to resolve cases. we have supported a number of legislative reforms that would help improve the backlog and mine safety. subpoena power is one reform that would greatly assist us. another reform would clarify the proof needed to establish that a violation is significant and

substantial. under current case law, such a violation is difficult and resource-intensive for us to prove. still other reformers could provide financial disincentives for operators to contest cases by requiring them to put pen of the amounts in the escrow or to pay pre--- to put a penalty amounts in escrow or to pay pre-penalty amounts. we have rulemaking to revise the determines what is happening in these cases. we have begun to file motions to expedite cases before the review commission. we hope that expediting appropriate cases will remove and other incentives that -- will remove any other incentives that they have to contest cases. we will file against mines that have a pattern of violations. i support the plan to revise penalty rules, to simplify the

categories on which penalties are based, such as the degree of negligence and the degree of gravity of the violation. by simplifying the penalty assessment process, we expect to receive your issues on which msah and the operators can disagree and your contested citations. there are some things that s.o .l. can do to provide disincentives. they must not believe they can get their penalties reduced. we may ask for an increase in penalties in litigation, so that operators understand that there are significant disincentives for filing frivolous contests, especially in these cases. i thank you for that opportunity to testify today. resources and these other issues are all part of the problem. >> thank you very much. we will turn out to dr. howard. >> thank you very much, mr.

chairman. we would also like to express our condolences to the families of those who died in the upper big branch coal mine disaster and to the families who have lost their loved ones tragically. these losses underscore the importance of preventing mine disaaters, which is the ultimate goal of mine safety and research. with a focus our efforts in several different research areas, including explosion prevention, sealed area expos and prevention, built a fire prevention -- sealed area explosion prevention, belt fire prevention. we need to attract commercialization of the new technology. without regulatory incentives, the future commercialization of new technology is often difficult and uncertain.

an example of a successful commercialization is the personal does monitor. -- desk monitor. we published a document about this a few years ago. it is a reliable real-time monitor that can provide miners and management with a powerful tool to prevent overexposure. it has the potential to be used both for compliance and sampling, and as an engineering control tool. a vital step in getting that into daily use to protect minors through commercialization was the initialization of a federal regulation. another promising technology that has the potential to save lives from coal dust exposure, in an era when finer and more explosive dust is being generated, is the coal dust

expose ability meter -- explo sability meter. which is published recommendations for a new standard -- we just published recommendations for a new standard. it will require that the total incombustible dust standard be reduced. it was based on a thermodynamics limit model. particle size surveys and multiple explosions experiments helped inform us. we have been aggressively pursuing commercialization of the cdm. it -- it has suffered from a lack of sufficient interest because of the small that market problem. the recent events have renewed interest in this technology. niosh has found a manufacturer

with broad experience and expects that it will be commercially available in 2011. this act also required average on communication and tracking. we established with our partners a comprehensive strategy and research program to develop new and enhanced communing situations -- systems -- communication systems. our strategy is designed to deliver better functionality and facilitate ongoing in permit to these platforms. the private sector develop additional technologies in parallel with our efforts. in 2006, virtually no msah approved communication systems that met the intent of the miner act or commercially available. today there are a suite of post- accident communications and tracking technology ies that are commercially available. none of them are prepared. when used in combination or individually, they have

significantly improved the functions there were intended to. for example, under the technology development mandated, it demonstrated a system to extract nitrogen gas from the mine atmosphere and injected into a closed area to render it inert. this is now commercially available. we want to protect the health and safety of mine workers. thank you for your support. >> thank you, dr. howard. miss jordan. >> thank you for the opportunity to testify. the need to eliminate this backlog has taken on even more crucial significance since the

tragic explosion at the upper big branch coal mine on april 5. all of us are profoundly saddened by the deaths of the miners there. our thoughts are with the family, friends, and survivors. we currently have over 16,000 pending cases at the judge level. this is a marked departure from our historical case load figures. during the four years from fiscal year 2002 and to 2005, the annual caseload range from approximately 1300 to 1500 cases. in comparison, during the subsequent years, the caseload climbed to over 14,000. due to the backlog, the age of the cases that the commission decides has been increased. for example, in fiscal year 2008, 72% of the cases were decided by administrative law judges within one year. only 5% were over two years old by the time they were issued.

in fiscal year 2010, cases of her -- cases under one year constituted less than 30%. 13% of the decided cases were over two years old. we expect this trend to continue as long as the backlog remains. the current backlog has significant ramifications. several important enforcement divisions depend on its determination of its history of violations, based on violations that are filed, which occurs only at the completion of the review process. if case decisions are delayed, msah's ability to enforce the act is inhibited. we have our fiscal appropriation. we have added four new law clerks to assist the new judges. if funding remains at this point and level, we project a case

backlog of approximately 18,200 cases by the end of fiscal year. president's 2011 budget request of $13.1 million would allow us to add four more judges for a total of 18, and would permit us to stem the growth in the backlog. the president has committed to reducing the backlog. there are different ways to meet that goal. in increasing the number of administrative law judges to 26 would cost roughly an additional -- would cost roughly an additional $5 million. at this level, we estimate that, assuming our current case intake level remains constant, we could read it -- we could reduce the number of cases in the backlog to less than 9200, within three years. if supplemental funding is provided, we recognize that we would need to hire new judges quickly. yet, at the same time, if and when the backlog is reduced to

an acceptable level, we will not need as many judges. we have two methods to achieve this. we have formally requested the office of personnel management asked other agencies to temporarily loaned their administrative law judges to us. we plan to recruit senior administrative law judges who have retired from federal service to work for us for a limited amount of time. in addition, we're a ditch -- we're examining our entire adjudication system to determine how we can streamline our procedures. on april 27, we published an amendment to our procedural rules which require parties to submit a draft settlement order with their motion and requires almost all of these commissions to be -- submissions to be filed electronically. with simplified procedures -- we have simplified procedures. the cases are placed on the track and they would then be subject to mandatory exchange of information early pre-hearing

meetings. the increase in judges and other changes we propose in our other areas will impact msah and the office of the solicitor appeared we're committed to working cooperatively with them to ensure that adjudication me once again proceed swiftly. over the years, this committee has played an important role in ensuring that we received sufficient funds to protect miner safety. i look forward to identifying the needs to address the backlog. thank you again for this opportunity to testify. >> thank you very much. i would note that the first bells have rung for the vote. i will wait until the second set before i recess. i do wnt to -- want to thank you for all of your work. but, i do want to get to the

heart of something, mr. main and ms. smith. it seems from everything we have read and look at that under the current system, there is every incentive for an operator to challenge just about every citation issued. they can take advantage of the long delays, put off paying any fines well into the future. they're often substantially reduced as a result of the contest process, even when the violations are fully supported. -- fully supported by the evidence. what would you suggest to this committee to do legislatively? we can put more money into hiring more judges, but i'm not sure that is going to do the job. he will just have more cases filed. -- you'll will just have more cases filed. i have two questions.

-- you will just have more cases filed. we saw an increase in the backlog. why is that happening? what are we getting more and more citations? i thought mines were getting safer. it seems like we're getting more violations and citations. miss smith, can you follow up on that? what should we do here to break that, rather than just hiring more judges? is there something that we need to do legislatively? mr. main, why this huge increase in citations? >> thank you, mr. chairman. when i became the assistant secretary in october, that was a question that i raised myself and started looking into the history of the application of th emine -- the mine act.

if you look at the progress of enforcement following that, and other activities that took place, including the funding of additional materials, that had some impact . i was really bothered by the fact that there was an increase of violations been cited. -- being cited. i heard the concerns about consistency and the new inspectors. i looked at the statistics to see if we were citing actual violations. what i found was that, on average in 2008, it was about 175,000 violations issued to the mining industry, yet less than one-half of 1% were vacated. what had been through that process -- those violations were

violations. before we get into the type of violations, we have to say, we have a problem here. what we need to do is have the money -- the mining industry take ownership of these, increase their safety, get in there and inspect, and correct conditions. if you fast forward that to the upper big branch coal mine with the number of violations we're finding, that was -- the solution was for the mine operator to hire up safety staff and get these violations cleaned up. i am bothered by the number. the number is pretty solid. >> obviously there are some minds that are very safe. they hardly ever have any violations or accidents. i would hate to get in the position of saying a coal mine is a coal mine is a coal mine. there are differences in terms

of deaths and a lot of other factors. -- dephts and a lot -- depths and a lot of other factors. >> i believe that those that have better safety programs have a better safety culture and a better safety record. those that lack those do not. if we look at upper big branch coal mine last year, we find that it had a number of orders issue -- the most in the country. there were mines that operated without no violations issued. i think that you have a question about the safety management programs that ran some of these. >> miss smith, what should we be doing? what should we do? >> it answer to your question is a combination of administrative, regulatory, and legislative.

on the legislative side, what we have to do is remove the penalties -- the incentives to contest the penalties in the citations. one thing we would propose is prejudgment interest. some operators will contest because they want the time value of money -- it delays the payment. we need to change that. some operrtors will contest because it delays the final order. the history of a mine operator -- citations are relevant to several things come future penalties, because that is one thing that goes into penalties, and violations. we need to look at the final order issue and see if we can take away that incentive. ultimately, it is taking away the incentive to contest that will help reduce this. those are legislative things. they have to be done along with

regulatory fixes, administrative fixes. there is no silver bullet to fix the backlog. -- i think when we pass the passed the miner act, we thought we had taken care of this stuff. it is even worse now. >> it does the law of unintended consequences. -- it is the law of unintended consequences. >> we're going to do something about it. we need to know from you experts what course of action we should take. i see we are on the second bells. we will recess now and i will return within the next 10 to 15 minutes. we'll stand in recess for just a few minutes. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

[unintelligible] >> the subcommittee will resume. we have been joined by the individual that i have admired so much for his leadership in so many areas, especially this appropriations committee, and his leadership in fighting so -phard for our miners. i can say this without any hesitation whatsoever, no one has done more for miners in this country than senator roberts byrd of west virginia. it is an honor to have him here today. i know how deeply senator byrd cares about his people in west virginia, and how we cares about miners everywhere -- how he

cares about miners everywhere. i have often said that we have such a great affinity for each other because we of coal miners's blood in our veins. it is a great honor to have you here, senator byrd. i yield to you for whatever statement and questioning you might have for this panel. >> thank you, mr. chairman. thank you, mr. chairman. i very much appreciate your holding this hearing. you and your staff, senator, have been very gracious in accommodating my request for

supplemental funding and for this oversight hearing. in the wake of the terrible tragedy that took the lives of 29 coal minersin the -- miners in the coal field of southern west virginia. nearly two months after that horrific explosion, i am perplexed. p-e-r-p-l-e-x-e-d.

perplexed as to how such a tragedy on such a scale could happen, given the significant increases in funding and in manpower for the msah that have been provided by this committee.

congress has authorized the most aggressive miner protections laws in the history of the world. -- history of the universe. laws worth -- aren't worth a damn. if the enforcement agency is not vigorous about demanding safety in the mines.

these laws are also jeopardized when the miners themselves are not incorporated into the heart of the inspection and enforcement process. as congress intended for them to be. now is the time, long past the time, to cast off the fears, the

cronyisms, and other encumbrances that have shackled " miners -- coal miners and msah in the past. assistant secretary main at to explainhavs much regarding this tragedy. regarding this tragedy. at upper big branch that happened on their watch.

their watch. i don't believe it was because of a lack of funding. i don't beleive that -- believe that msah lacked -- l-a-c-k-e-d -- lacked enforcement authorities. i don't believe that. massey energy officials who bear the ultimate final responsibility for the health and safety of their workers still have much to explain to the country and to the families

of the miners who perished, who perished, the miners who perished. i cannot fathom how an american business could practice such disgraceful health and safety policies, was the same time boasting -- while at the same time boasting about its commitment to the safety of its workers. i cannot understand that. the upper big branch mine had an

alarming, an alarming record of withdrawal orders, of withdrawal orders, an alarming record of withdrawal orders. now, where on earth, where was the commensurate effort to improve safety and health? where was that?

presently, there are several ongoing investigations, including an ongoing criminal investigation, an ongoing criminal investigation. perhaps, just maybe, maybe these will provide some solace and comfort to the families who are looking for accountability.

let's all hope that this hearing will provide information on the government and government officials -- and company officials -- let me read that again. let's also hope that this hearing will provide information on the government and company officials who should be held accountable. may it lead us to some additional steps thaa may be

taken to avoid such horrific, such terrible loss of life in the future. >> senator byrd, thank you mary much for your very profound statement -- very much for your profound statement that gets to the heart of why we're here. ask had asked some questions earlier for mr. main and -- i had asked some questions earlier for mr. mayne and miss smith -- mr. main and miss smith. i yield to you for any questions you might have. >> thank you, mr. chairran. yes. my first question is addressed

to assistant secretary main. m-a-i-n. given the disturbing safety record, and i mean disturbing safety record, and the reputation of this particular mine, why, oh, why, oh, why, did msah wait until after the tragedy to launch an inspection blitz? this coal mine has a history and of patterned violations.

>> mr. main? >> senator, that is a fair question to ask of this body. i think for those to understand why we did the blitzes we did is to make sure we had no other upper big branches that existed. >> can you understand him? >> i am tryying to listen. -- trying to listen. say that again, mr. main. >> it is a fair question. we wanted to make sure there were no other upper big branches that existed with regards to conditions that posed those kinds of threats.

>> let me emphasize that the question is why did you wait until after this tragedy to launch as a blitz of inspections, especially at a mine that had a pattern and history of violations? >> we examine what we did. we are looking to figure out what we did or did not do. i think that what was happening on the ground in west virginia, with the enforcement folks that were there, they will -- were using the tools that they had been using over the years. i am told they have been somewhat useful, to a great degree, to help fix some of these problems -- the 104d closure orders. as the record reflects, that mine did receive the most closure orders of any mine last year in the united states. it is a question on all of our

minds -- what else could we have done there? in retrospect, i think that there would have been more enforcement tools used without any question at that mine. having learned lessons that we have from that experience, we do not want to do anything to ever repeat them again. we're struggling right now to figure out what tools we can grab on to the tool box to create. one of these is but 108 -- the 108 closure and in john thune -- and injunction order. had the pattern of violations -- we have the pattern of violations that was a broken system. there has not been a single mine ever put on the pattern of

violations -- except for one for a very short period of time, which went to court and got off. we have shortcomings. >> mr. main? >> yes, sir? >> why did msah wait until after the tragedy to launch an inspection blitz at mines that had a history of patterned violations? >> senator, the only thing i can say is that is something that we have to take a look at and figure out. that's something that we will re outt and try to figu what we did or did not do.

>> assistant secretary main and solicitor smith, aside from the health and safety laws, what unconventional remedies exist to deal with a rogue -- r-o-g- u-e -- rogue mining company that has a reputation, i mean a reputation, for flouting, in other words waving its nose at the law? do you want to answer that? >> senator, i would suggest that the criminal laws may be where

your answer lies. we've been looking very carefully and working with the u.s. attorney to see what can happen in that regard, aside from the health and say the laws that you mentioned. -- health and safety laws that you mentioned. we have to look at the penal law. >> mr. main? youruld like to get comment on that. why -- let me ask again -- why --

aside from the health and safety laws, what unconventional remedies exist to deal with a rogue mining company that has a reputation for flouting the law? >> in terms of dealing with a rogue operator and using the tools that we have at our disposal as a federal agency -- there are tools that we are constantly developing now to do that. one of these is the blitz inspections. we're looking at -- i do not know if you recall of unconventional. it has never been used before. we're looking at engine and give relief to go after and shut down minds -- at injunction relief to go after and shut down mines.

we are ratcheting up the current tools that we have in our tool bag, in order to use those more effectively. i will tell you a little story that is bottoms and -- father some. -- bothersome. we had a number of anonymous calls. there were so fed up with the conditions that they called msah -- they were so fed up with the conditions that they called msah, complaining about illegal practices, systems, ventilation. we sent miners to those mines on the afternoon shift. people should expect more of this. we went underground and

found conditions that were unbelievable in the 21st century. we're changing our tactics. you're going to change our tactics and do things and conventionally to be able to go in and catch the mines when they are violating law. these were three massey energy mines. we found conduct that coold not be considered anything more than out longish -- outlawish. we have to change the way we do business. we have to get new standards in place. we have to go after people like this. we need subpoena power. we have to give these miners a voice. some of them are scared to death to speak out about conditions that they are stuck in. using tools like that,,we believe they are necessary to fix this problem. i would point out that one of

these occurred after the upper big branch disaster. >> i will have a follow-up question after the chairman finishes, regarding why miners cannot feel more free as whistleblowers to make these kinds of calls. >> in his testimony, mr. secretary, mr. blankenship states that msah certified the upper big branch mine to be in good condition, "good condition." prior to the april 5 explosion. mr. blankenship says, "msah officials forced -- forced

massey engineers to accept an unsafe ventilation plan and suggests that msah is trying to cover up its mistake in a secret investigation." this sounds like someone is trying to blameou agency for the deaths of 29 miners. how do you respond? >> thank you, senator. the first thing i will say is msah at the not run the upper big branch coal mine -- did not run the upper big branch coal

mine. massey energy did. they were operating the mine. with regard to us certifying this as safe or good come msah does not certify -- or good, msah does not certify. there is no doubt that the conditions were not good. that is one that our agencies would take great challenge with. as far as the ventilation plan, msah does not designed ventilation plants for mines. msah approves or disapproves a plan. there is some discussion in that statement about the conditions starting back in september, where msah had so-called influence over the crafting of their ventilation plan.

i want to walk through a few issues to help set the record straight and give some understanding of what we're talking about. on september 1, 2009, an inspector went into the upper big branch coal mine, back into the long wall area and found that the company was in the midst of a major air change. under the law, you have to evacuate the miners out of the mine. in this case, they were still working. the air was reversed on the brand new wall. it was going the wrong direction and not being ventilated. an air shaft was delivering air, but they couldn't figure out how to make it work. this mine was not being operated

legally. it was gravely endangering miners. the inspector did what the inspectors should have done. he issued a closure order and ordered everyone to get out of+ the mine until it was fixed. msah, if they find a violation, the issue be inappropriate enforcement action -- either citation order, the order to be corrected -- the company has to correct it to satisfy the order. msah found that the entires - the entires -- the tnries ah -- the entries had deteriorated because they had not been properly maintained. one area could not be

traveled. we issued the appropriate order and ordered them to cease that activity until the conditions were fixed. this again place the miners in great danger in my opinion. the mine operator was required to fix it. the mine operator had to come up with their own options to fix the problem. these are the kinds of conditions we are finding. if the massey energy or any other company asks msah to ba ck off of an enforcement action because they do not like it, msah is not going to do it. we're going to enforce the law. >> i would ask you to stay here during the next panel. we want to try to get to the bottom of this. i now recognize senator murray. >> thank you very much for having this hearing. miss smith, you noted in your testimony that changers to

pattern ofes violations pattern maybe -- patterns of violations processes may be necessary -- changes to pattern of violations processes may be necessary. >> under the current pattern of violation standard, until there is a final order, the violation does not count against them for the violations. we've seen several operators who have avoided pattern of violations because they have orders that are not final. >> is there something that we can do to change it so that this is taken seriously by mine operators? >> msah is proposing regulatory changes. we're working with a committee to look at statutory changes also. >> we look forward to seeing%+

those. in your testimony, you said that in 2008, your case backlog increased by 72%, and that in fiscal year 2010, cases under one year of age constituted 25% of all cases decided by the commission, 62% were one to two years old, and 13% were over two years old. is there pressure on you to fix this backlog? >> our judges -- we do keep records of how many cases are disposed of. the judges are aware of the backlog. the judges are very hard working and conscientious. i do not think there is pressure liket tdo a thorough job, they need to do. it is sort of balancing those

factors. there is a backlog, but -- and bring taking steps to on assistants and clerks. implemented a procedural change that would help speed things along and make it smoother for the judges. the majority of cases get disposed of by means of settlement. the parties agreed to settlement and they file a motion to approve the settlement with the commission. >> over time, i would assume that mean less fines? >> no, not necessarily. they reach a settlement and the file it with the commission. a commission judges review that settlement -- the commission judges review that settlement and are free to accept or reject it, if it does not meet the statutory requirements.

-- if there is a departure from the original amount, they may reject it and ask for an explanation. why has the secretary -- if the initially proposed a certain amount and are settling the case at a different amount, what explains the difference? they can require the parties to come forward and explain that. we recently -- until recently, our judges had to draft the order that got issued. we have eliminated that step. we have now required the parties to file a draft order with their motion, and to do so electronically. we hope that change will help expedite some of these cases, too. >> ok. mr. main, mr. blankenship is known to believe that massey energy mines have been disproportionately targeted.

do you disproportionately issue citations or target mines? >> senator, i do not think so. when you look at the conditions that are being cited, i did a recent example of three mines -- gave a recent example of three mines, where those things -- we have to spend more time at mines like that. >> what kind of violations had you find -- have you found at the upper big branch coal mine? >> the ones we have talked about the most are on the ventilation standards. i just talked about two of them -- finding the mine in adequately ventilated during inspections. there have been violations over combustible materials, which could cause fires and dust that can cause explosions.

one of the things we're concerned about in this case was their excess coal dust. we'll check that out. the kind of conditions that you worry about. >> mr. blankenship said that the changes recommended in the ventilation plan made that mine less safe. can you speak to us about why the upper big branch coal mine was made to update its ventilation system? i was trying to follow it. could you say it again? >> we are still in the process of doing the investigation. it will be some time before we get all the facts together. in terms of some of the issues i've looked at and the paper that was issued, we found that, on september 1st, for example, when the inspectors went into the mine and found that they were making a major air change with miners on the ground --

that is a violation. that exposes them to danger. you do not do that. it found a section where a group ofminers was working and -- a group of miners was working and the ventilation was not working. in that case, if it is going the wrong direction, it is absolutely not working. those of the kinds of things that, i think, tend to make an agency concerned. when they find that attitude, they are going to spend more time there. if you look at that mine, the inspection time was doubled from 2007 to 2009. i was not here as assistant secretary at the time. when you look back, there was a reason for that. the conditions reflected a reason for us to be there more.

>> thank you very much. thank you, mr. chairman. >> i have one follow-up question for miss jordan. we passed a supplemental appropriations bill. in that, there is a $3.8 million in funding for your commission. i know that bill still has to pass the senate. we will do that next week. within the next few weeks, that bill will law. i think i can assure you that money will be there. my point in bringing this up is that it seems to me there maybe two ways that you can approach this money. hire fewer staff and stretch it out for a longer period of time. or hire more staff now and hope there will be more money later

on. i hope you will pursue the second course of action. you need that personnel now. we're committed to getting you the funding that you need. we will try to do this in 2011 by going over the request. i hope i have made myself clear. >> you have, thank you, senator. .

they can in terms of real property acquisition of the mine, there was something blocking the entrance. we would like to express our appreciation to you and the rest of the committee in the interest in reopening the mine. it is a difficult proposition in korean i am not an expert, but it is not your usual surface acquisition -- it is a difficult proposition.

i am not an expert. this is to perhaps excavate another portal so that we can work around the area where the roof has fallen. >> i believe we have information as to what it would cost to do that, but you may want to follow up and give us an up-to-date estimate on what it will require to reopen the mine. >> will do. >> thank you very much. i think the entire panel for being here. thank you for your testimony. you are all business so we can call our second panel up. -- you are all dismissed. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute]

>> ok, f.a.q. thank you very much. thanks, judge. -- ok, thank you. we are welcoming our second panel. mr. don blankenship has worked since november 2007 here. he joined a subsidiary. he earned his accounting degree from huntington, west virginia. our second panel witness is mr. cecil roberts, with the american mineworkers. prior to serving as president, mr. roberts spent 13 years as

vice president. he received his degree in 1987 from west virginia technical college, and he has testified before this committee several times over the years, and we welcome you back here to this committee. mr. blankenship and mr. roberts, before your testimony, it will be made part of the record. if you could sum it up in a few minutes, we would like that. please proceed. >> thank you, mr. chairman. i appreciate the opportunity to discuss the upper big branch accident. no words can adequately describe the tragedy of april 5. i have visited personally, despite media reports, with most of the wives, children, parents, and family members of massey of those who lost their lives, and in those meetings, i extend our

deepest sympathies and tried to attend to their needs and the needs of those who have lost their loved ones. i personally heard their expressions of grief and sought in their eyes the unspeakable sorrow that they had. -- and saw in their eyes. it is too late to bring them back, but we have to try our best to keep it from happening again. massey strongly supports the principle that the operation there must beeindependent, honest, and aggressive. transparency is an important element of the process. >> could you speak more clearly?

and closer to the microphone? >> i will pull this up and try to help. i want to discuss our inspections and appeals and discuss ways that we can work together to make mine safety and accident investigations more transparent. let me state for the record, massey does not place profits over safety. we never have, and we never will, period. from the day i became a member of the leadership team, i have made 60 the number one priority. the result has been a 90% reduction -- i have made 60 the number-one priority. -- i have made safety the number-one priority. our innovations have been adopted by competitors, and we were honored with an unprecedented three awards, the highest safety award in the mining industry. next, i want to talk about the

issue of citations and appeals. first and foremost, the is mandatory. even if a citation is appealed, -- this is mandatory. in most cases, the citation is fixed the same day. at massey, we always fix the problem, even if we do not agree with it. we are not trying to game the system. rather, we are exercising our rights. we do not benefit a system where they are backlog for months or years, and we urge congress to appropriate the necessary resources necessary to make the appeal process work safely and quickly. at the big branch mine, we work together to address such patients and to ensure that the mine remains safe. in 2009, 47 of the most serious violations were recorded at

upper big branch. that presented a challenge that we would not tolerate and did not ignore. in response, massey convened a committee and reduced these violations by about 80%. in fact, there was a quarterly close out a meeting prior to the disclosure -- explosion, and they determined that the mine was in good condition and that there were no issues. let me make it clear that just days before the april 5 explosion, they agreed that the upper bay branch mine had no outstanding safety issues and found the mine to be in good condition. at upper big branch, we complied with state orders even when we strenuously disagreed with them. in particular, we disagreed with one plan. against the advice of experts, they required several changes since september 2009 that may be ventilation plan much more complex.

this change significantly reduced the volume of fresh air to the longwall operation. our engineers resisted doing this to the point of shutting down before being forced to agree to the changes. we agreed to the changes, the we agree they were less effective -- we did not agree with the changes, because we believe they were less effective. we do not know of the ventilation system played a role in the explosion, and we do not know whether the modifications of that system demanded by them played any role in the explosion, but our disagreement with them over the ventilation plan highlights we believe is a fundamental flaw in the way it is being investigated. it is simply this. how likely is it that they will point the finger at themselves if the evidence gathered suggested that the actions contributed to the explosion?

how do we know if we do not see the evidence because they investigate in secrecy? others do not work that way. after an aircraft accident, the national transportation safety board conducts their investigation in public. they look in the airline operator and the federal regulator. this is why we have called for open and transparent investigation. -- investigations. we are determined to figure out what happened. at the same time, we need to understand the importance of this to the security of the united states. cole is an abundance, affordable, and reliable source of energy that reduces our dependence on foreign oil -- coal is an abundant, affordable, and reliable source of energy.

this is the time for agencies to work together so that americas column minors can be safe -- america's coal miners can be safe. i will be ready to answer your questions whenever you are ready. >> thank you, mr. blankenship. and we will turn to mr. roberts. again, please proceed. if you can summon up in five minutes or so, we would appreciate it -- if you could sum it up. >> thank you. i want to commend the work of this committee has done in the past and the support that you have provided in protecting the nation's coal miners, and we owe you a great deal of gratitude. even to robert c. byrd, a want to say thank you for over 40 years of standing up for coal miners -- i want to say thank you. i want to give particular tribute to the celebration over

the safety act. for those who believe that these do not work, in the 40 years before the passage of the 1969: health and safety act, 32,000 plus " miners died in the nation's mines. 32,000 plus. since the passage of the act 40 years ago, 3200 plus miners have died. congress acted begin in 2006. we stand here today to think congress for standing up for the coal miners of this nation to protect them when they go to work. there is not a coal miner in this country that does not have a right to go out that door with their dinner bucket and kiss their wives good-bye and

children by and say, "i will see you in about nine or 10 hours. that is not unreasonable to expect. i also like to say that we mourn the loss of those 29: honors at upper big branch. -- of those coal miners at the upper big branch. they lived amongst them. four of those miners you died were in a cabin creek where i masri east. so we look in their eyes, also. we have seen the tears in their eyes, but there are another 23 miners that we should mention here today. there have been 23 other coal miners that have died in massey mines in the past 10 years. at the time of the explosion, they had the worst fatality rate in the industry. this is before the upper big wrench explosion, so now we

have 52 miners who have been lost at massey energy in tangiers. i think this is unacceptable. since this explosion and before this explosion and in close proximity of this time, it has been determined to be unsafe, and it was declared that this was pitiful. it was not just what happened at upper big brands. we have got 23 other miners to die before the upper branch explosion. we have got the 29 who died the day of the explosionn and as we gather here right now, the real question for all of us, whether we are in congress or in this union, how are we going to protect every single coal miner working at massey energy, and

for that matter, across this nation? when i testified, i said that 95% of the ceo's in this nation try to do the right thing. they have criteria for working in those mines, and i will tell you, as don blankenship is sitting beside me, these others would not have put up with this for five minutes. somebody would have done something. they asked us the last time we were here. why did you not shed these mines down? i think that is a proper question. the other question i would ask is why did not don blankenship shot this mine down? he runs this place. he could have walked up there and said, "this place is shutdown until we correct these probbems pure " -- why did not don blankenship shut this mine

down? he runs this place. he could've walked up there and said, "this place is shut down until the correct these problems." they should be punished up to and including jail, and i do not just think it should be those working at upper big branch. there is a problem here that is going completely through this mining industry with respect to massey energy, and i have said this privately and publicly that i believe this. thank you for your time, mr. chair. >> thank you, mr. roberts. i will yield for opening questions to senator byrd. >> mr. blankenship, do i have your attention? do i? >> yes, sir.

>> we have all heard, or we have all read, about the number of times that massey mines have been cited for, c-i-t-e-d, for safety violations in the past month, pearl -- plural, and we all knew of the recent carnage at massey's upper big branch mine. 29 men are now dead, dead, dead. simply because they went to

work that morning. i am also concerned about the massey record, record, r-e-c-o- r-d. apparently, the safety violations are nothing new, nothing new. according to their figures, during a 10-year period, 1995 to 2006, massey mines had a total of 1998 injuries and 24 deaths.

24 deaths. massey mines were cited for 31,000 -- let me repeat that. massey mines were cited for 31,000 violations. this means that on average, during that 10-year period, a miner was seriously injured every other day. there were tens safety

violations every day, every single day t massey -- at massey mines. let me add an exclamation point there, and let me say it again. there were 10 and safety violations every day -- tens safety violations -- 10 safety violations every day. this is as clear as beane nunes sun in the sky. -- as the noon sun. and this is the clear record, of blatant, b-l-a-n-t-a-n-t,

disregard of the issue -- safety of massey minors. a shame. do you care to comment? >> yes, senator. first of all, we did violations extremely seriously. the criteria greatly changed on violations, as i think everyone understands. as i said in my opening statement and in my submitted testimony, i have reduced it there by 90% during my tenure as chairman. at upper big branch, we did not sit idly by. once we recognized how many violations we were having, reform the housing discrimination committee and reduce citations at upper big branch by nearly 80% -- and reduce citations. we have worked very hard -- and reduced citations. we have more than 120 rules and policies at massey that exceed

the law. we have been, if you will, the most significant innovator of new technology, including as simple as reflective clothing, to as complicated to the fact that this year, we will have the first miners with proximity devices on them. we have led in innovation and safety, and we have made every attempt to deal with the violations and continue to do so and will do so because we believe in eliminating hazards for all minors. >> -- for all miners? >> mr. roberts, would you like to respond? >> thank you, senator, for the opportunity. the effort to reduce the number of violations and make the upper big branch mine safer, if you look at the first quarter of 2010, and take the number of

violations that were issued in the first quarter after mrr blankenship says he assigned this team, if they were on a pace, if you take the numbers that they were issued, the violations they were issued, in the first quarter and project them out for one year, 500 violations. now, i would suggest that that is not a record that anyone should come in here and say that they are proud of. the of the thing is they were shut down at the same times for serious violations in that first quarter. there is the agency charged with enforcing the laws that congress passed, 28 times, and then, i would just like to add a human element to this, if i might. there is evidence there that the miners are scared to death. there is a man whose family i know, 25 years old, and he wrote a letter to his mother, his fiancee, and his baby, and he

said, "if i die, i want you to know that i love you." now, that is the kind of letter that people road going to vietnam, and that is the type of letter that people right when going off to war in afghanistan or iraq. that is not the type of letter you are supposed to be writing when you go off to work with your dinner bucket. -- that is the type of letter that people write when going off to war in iraq and afghanistan. >> mr. blankenship, miners have the right under law to walk away from unsafe working varmint work environment -- walk away from an unsafe work environment.

how often do massey miners request transfers due to safety concerns? let me ask you question again. how often do massey miners request transfers because of safety concerns? >> i do not know that we keep a statistic on requested transfers. i can tell you we did a survey, i believe, in february of this year, when we anonymously ask people if they felt safe on the job and whether if they thought massey's safety program made them safer than at competitor mines, and an amazing 93%

reported they felt not on as safe but safer. i can tell you we take a very quick action on individuals who violate our safety rules, when we become aware of them. we discharge more people for failing drug tests and safety than we do anything else, so we are constantly trying to enforce some people how important we consider violations, how important we consider safety. we have invested tens of millions of dollars beyond the law. we have our own manual that exceeds the safety requirements. we are a leader in the industry. our people should not feel afraid. there is an 800 number that they can call anonymously. we encourage the posters and other that they can let us know. you always have a out of 7000 members people that perhaps do not come forward and should, but we think we have as good a safety program in that regard as anyone in the industry -- perhaps do not come forward as

they should. >> mr. blankenship, how many upper big branch miners requested to be transferred because of safety concerns prior to the april 5 explosion? >> again, i do not know of any statistic that we have on how many people requested transfer out of upper big branch, and i do not particularly know that anybody transferred or ask for a transport due to safety reasons. most -- or asked for a transfer due to safety reasons. i do not know of anyone who asked for a transfer for safety reasons, but there may have been some. >> how do you handle those requests? >> the first thing i would be interested in if i had a request that came to my attention if someone wanted to transfer for

safety reasons was to try to figure out what kind of safety concerns they had that encouraged them or cause them to make such a request and then, of course, try to correct that. i would say to the group that we had 29-perish in this accident that had a combined 400 some years of experience -- we had 29 experienced miners in this accident. several had worked at this mind for 10 to 14 years and were very experienced and very well qualified -- worked at this m ine, and i do not believe they would have put themselves at risk and knowingly. >> mr. roberts? >> -- would have put themselves at risk on knowingly --

unknowingly. >> mr. roberts? >> we want to make it so that anyone who interferes with a personal right to withdraw themselves from the position that is considered unsafe, that is something we desperately need, because it is our opinion that miners are very much concerned. we know the people there at this mine were worried about being killed, being injured, and i think that the record will reflect that when this investigation is completed. >> the testimony, he, the

assistant secretary, cites recent anonymous complaints that prompted the inspections at three massey mines biggest in west virginia. inspectors found illegal practices that required withdrawal orders be issued. because of inadequate air movement with potential for explosions, blocked escape ways, insufficient mine examinations,

and roof fall hazards. now, what happened? the massey officials allowed these dangerous and illegal practices to exist. >> i think he was referring to some events at one of our minds where people had called in about one month before the april for its tragic -- at one of our mindes where people had called n about one month before the april 1 accident. there was one individual who was cited post the april accident.

-- april 5 accident. but as in the case with most companies, you cannot keep track of everything. it includes drug testing, criminal checks. it includes everything, as simple as being able to read and the non-smokers, so a big part of our safety program is making sure we a well qualified, well meaning people who can be made safely in a coal mine, but sometimes, that does not work out, but in answer to your question, all nine of those individuals were discharged. >> why was the inspection necessary to correct these? >> again, as is the case, i and others cannot be at the mine every day, so there are violations.

this indicates that some people do call in. this, as and stand it, we did not know for sure that was the case. these people did call in, that they felt unsafe or that improper practices were being conducted. this does indicate that they will call the 800 line or be whistle-blower's come and as i said, we took decisive action. >> mr. roberts, do you want to comment? >> i think there is a distinction to be made. the question you had asked mr. blankenship previously was how many miners had withdrawn themselves, and that means they say, "i think i am in a dangerous situation, and i want to be withdrawn? " i have never heard of a midget and i want to be withdrawn?" -- and i want to be withdrawn?"

i have never heard of a massey miner doing that. i think there were three different mines that were gone into. there were serious violation spam also, so there are some distinctions. it is not the same thing. when someone calls anonymously, no one knows and they are, but when someone with draws themselves, everyone knows who they are. >> mr. blankenship, you say that massey does not please profit

over safety, never has, another well -- and never will. that is what you said. but previously, you told your d- superintendents' that running coal is the top priority in the minds. bg you told your deep mine -- you told your deep mine superintendents that running a call is your number one priority. this memo was necessary only because we seem to not understand that the coal pays the bills. end quote. >> i think that is true if you read it in that sense, but people knnw that s1 is safety is

job one. that memo was the result of construction work not needed for five years. it was being done at a time where it did not need to be done. in fact, i encourage our co- production people to produce coal, because so long as they are working in the job that they are working to do, they are more likely to be able to do it safely. when you put people who work in the face of coal mines and mining coal in the business of doing other work that is not normal to them, there are more likely to be injured and if they do their normal work. it was sent out. a few days later, we sent out a corrective memo to make sure that no one misunderstood it, and as you might imagine, in my 20 years at massey i have written and receive many memos,

but i am confident that our belief in s1 and our safety far outweighs any single memo when we had people do construction work that was not necessary for a long period of time. >> after the deaths of two miners in 2006 at a west virginia mine, one person agreed to plead guilty to a series of criminal violations that hampered-trying to evacuate the mine after a fire had started. in the plea agreement -- that hampered miners trying to evacuate. there were controls to protect the primary escape tunnel. again, it just does not sent to me like putting safety first. >> again, we do everything we

can to get every 7000 -- every one of our 7000 people to put safety first. no one had any knowledge of this being left out. i had done everything that i knew that i could do in advance by pointing out that we needed to know that everything was safe. obviously, i think it was fairly certain it was left out, and it did violate the escapeway, but, certainly, none of that said that massey officers or myself knew about it. in effect, it says the opposite. >> mr. blankenship, you mentioned the awards, the three sentinels of safety awards, that you were given last fall, if i am not mistaken.

i understand that none of those awards were for an underground coal mine, and no. 3 recognized sites represent less than 2% of massey mines -- and the 3 recognized sites represent less than 2%. >> i do not know that any single mine represents more than 3.5% of our work force, so those were sentinal safety awards, and would never represent a large portion of the work force. >> but they were for above- ground work? >> yes, and maybe also surface. >> well, i'm going to ask you this question.

when they have an accident, is usually because someone does not follow the correct order or direction. but why can we not take those mines that have these excellent safety records and a culture of safety, and why does not masssey ey incorporate that? if i was in a hazardous business, coal mining, and if i and others that may be were not in my company, but they had excellent safety records and did not have any problems, you would think that i would want to adopt that. do you ever do that? do you ever look at what other mines are doing and say, "they are doing great." >> right in line with that, we

have a package that has 121 rules that exceed the rules, available on the internet to everyone in the mining industry, and we did that. we also use good performing minds as templates to look at that performing mines. ppera big branch had a 5.8 rating in 2009, and this focus we put on it as a result of understanding the process is brought that accident rate to zero in the first quarter of 2010 before this tragedy, so we do use best practice is. in fact, our s1 -- we do use best practices. >> mr. blankenship, i been around long enough to know that you can have all find things on paper, but unless you're executing it on a daily basis, they do not mean much. you can have all kinds of fancy things on paper, and you said

something to what senator byrd asked. "we cannot be at the mine dayley." -- dayley -- dialy." this is why you have to read safety things set up that are self perpetuating. you also have to have a system whereby if a minor sees a violation that that minor, with all of the protections they have, can blow the whistle -- if amin miner sees a violation taht that miner, with all of the protections they have, can blow the whistle. >> we have an 800 number. they can call in from home. >> and you can trace the call

and find out where it comes from. >> i do not know if we can trace it, but the main thing is that our people are told constantly that they should never worked -- they should never work unsafe or participate in safety violations. i think we are doing pretty well in that guard to reducing the rate. we have a tragedy on our hands, but we do not know why it happened. i believe there are things that need to be done to greatly reduce the chance that would happen again. the idea thatmassey -- the idea that massey management does not care about safety is not true. >> i would just like to put out a couple of things.

the point out a couple of things. there is this horrendous situation at upper big branch. this is the sec it disaster in a few years. -- this is the second disaster in about four years. i want to speak to something that we have become aware of, and we raised this with mr. blankenship and his shareholders' meeting earlier this week. -- at his shareholders meeting. we have had workers tell us that

when you get injured at massey, when you go to the emergency room, you have someone from human-resources meet them there, and we had one person who had his finger cut off, and he was told, "you do not have to take time off here. you can come back to work, and you can have light duty, and therefore, we do not have to report this." we know of one individual who has three broken bones in his back, and he is working at massey. so i think the statistics are borderline fraudulent here. you are paying them. taking time off of work and getting workers' compensation, and you are paying those people to come to work, i think there is another important thing here

that is troublesome to us. mr. blankenship, he gets a bonus for reducing lost time, so we take company money, and we pay someone who is injured to come to work, and then don it's a bonus and then he gets an award for this. >> can i address that? >> yes, contrary to what cecil says, people in the industry copy us all of the time. we have inventions that are everywhere. we have led the proximity devices. many of the 120 rules that we put in place, one of the most important that allow someone who falls down in a coal pile and

it's covered up to be able to have lights and communication and breathing apparatus. this is a massey invention that is used not only by others but by the government itself, and it is very common for workers to have light duty work. we do not require that. we cannot require that. the law prohibits that, but, in fact, we make that available to people who want to choose to do that. i suspect and believe that many companies do that. i do not think it is a bad practice as long as the guy can fully perform the job. >> is your mine organized?

is it represented by a labor union? >> we have very few represented employees. we have probably 100, 120. this particular mine at upper big branch but twice voted not to be represented by the mine workers. many of the people there were still, where former -- were former members. >> i guess the one thing that keeps nagging at me, and here with you say about safety, and i do not have an intimate knowledge of that, obviously, but then when i wrote down here 52 miners died and -- at massey mines, highest in the industry, i am trying to square these two things? >> once you add the 29 in, it is

a bad record. i feel terrible about it. i do not know yet what happened. when you look at the difficult conditions, underground conditions, and so forth, we are about average, if you look at the number of fatal, we are a big producer, so absolute numbers when you are producing 40 million tons per year, they tend to get big, even with your best efforts, but any fatality is unacceptable to us. there has not been a single fatality korea not try to make an improvement with. -- there has not been a single fatality where we do not try to make an improvement. we have had several, as the industry has, when a mine operator -- we have put up without being required by law to dollars million per year for

these plates called pizza pans, and we are the only company that we know what to do that. we believe and learning from accidents and trying to do better. >> i have another question, before i yield to senator byrd, -- i will recognize senator byrd. >> mr. blankenship, why so many fatalities act -- at massey mines? >> as i said, we are about

average. 400 million tons would be similar to 50 across the industry, which is not far off the average, but the issue, of course, is that mining in central appalachia, mining indeed mines, mining in the areas where we mine, it is a big challenge, .and we meet that challenge as we can, and we will continue to do that -- mining in deep mines, mining in the areas where we mine, it is a big challenge, and we meet that challenge as we can. i can go on for hours about massey inventions, believing that we have to engineer the risks out, and we have to work together with the government and the company to find more opportunities to engineer the risks out of mining.

>> massey is not average. massey is not average. cecil, would you like to comment? >> i have heard don use this 23 fatalities in four years before upper big bridge as about the industry average, and for the life of me -- upper big branch. i cannot come up with another who has had 23 die in that time, and then he talks about production and says that is out begins to the -- how he gets to that. "i mine x amount of tons, and i

figured out some way to make that the average." is unacceptable. i wish -- it is unacceptable. i wish don would come to the conclusion that he has to be better than this. and then he has this explosion at upper big branch on top of this. this is the worst fatality rate in the industry any way you look at it, either before the explosion or after the explosion. it is the worst, and i just have trouble with his calculations here that somehow this is the average. this is not the average. this is deplorable, is what this is. it is not acceptable. >> mr. blankenship? i helped to write the laws in

1969, 1977, and 2006, so i have been around awhile. let me say it again. i helped to write the laws in 1969, 1977, and 2006 to improve safety in our coal mines responsibly to comply with those laws. how do you reconcile that safety is number one at mastiff -- massy with the fact that your mind has had 48 withdrawal orders, too many violations, and 52 deaths?

>> i can tell you it is not an assertion. we were very hard to make safety first act -- at massey. in 2009, when it came to the attention of management, we put to the korea city specialists at the mine. we formed a five-person house in this elimination group, which also has other people involved in it. we met with them to find out how we could proceed in terms of all massey problems. we have spent tens of millions of dollars. i am very appreciative of the laws that you have passed. i know these coal miners. i still interact with them. i am the only major company ceo that still lives in the heart of them.

i live in west virginia. i played basketball with them. and looked them in the eye after we had to give them the bad news. i do not want to do it again. there is nothing i could be accused of or anything you can do to make to do more to make me want to avoid it again. i can assure you, despite what you read in the media, that massey is very interested in improving safety. >> thank you, senator byrd. >> do you have something else? >> yes, i just have one here. >> i was stricken by the word "certified."

they thought they had inspectors on site and the management on site, agreeing that the mine had been fixed, that the problems had been addressed, and they were appreciative of all of what we put into it. i met in february of 2010, just a couple of months before the accident, and asked the question of is there anything that we need to focus on, and a big problem that you want us to deal with i think we all had thought the we had moved this mind forward. i do not know what happened, whether the violations and the nature of the violations contributed, so we are anxious to find out. >> one more time, he also said that they do not provide for a planned indeed 4 plans -- for

planned ventilations. there were plans for a change in the ventilation system. did they provide you with a planned a ventilation system? >> i think that most people in the industry would agree that the only approve the plan they want. but easy way of example for you, one of the things that congress has allowed is scrubbers on continuous miners. this is an important part of holding down breathable dust. yet, they will not approve the use of 63 of our continuous scrubbers, so, therefore, we are not running them. that is not our wish. we have talked about them along

time. we have talked about them not allowing us to run them. they will not approve our ventilation plants. they forced us to ventilate backward by not approving plans. they prefer that we ventilate on exhausting their systems. the mines are not an elated. they will not allow it. >> now, you're in an area that i know nothing about, obviously. >> i apologize for that. >> what do other mines do? are you familiar with that? >> someone. -- somewhat. let me pick up from where i think don was going. this is to remove the dust from the atmosphere. this is a health issue said that -- so that