Table of Contents *

OPENING STATEMENT OF CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

OPENING STATEMENT OF THE RANKING MINORITY MEMBER, MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES, OFFERED BY REPRESENTATIVE WOOLSEY *

STATEMENT OF J. DAVITT McATEER, ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH, MINE SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C. *

STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH, NATIONAL MINING ASSOCIATION, WASHINGTON, D.C. *

STATEMENT OF KIM SNYDER, PRESIDENT, EASTERN INDUSTRIES, CENTER VALLEY, PENNSYLVANIA; ACCOMPANIED BY NAT PARKER, SAFETY DIRECTOR, HEDRICK INDUSTRIES, SALISBURY, NORTH CAROLINA, ON BEHALF OF THE NATIONAL AGGREGATES ASSOCIATION - NATIONAL STONE ASSOCIATION *

STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR FOR OCCUPATIONAL HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA, FAIRFAX, VA *

STATEMENT OF L. JOSEPH FERRARA, MEMBER, JACKSON & KELLY, P.L.L.C., WASHINGTON, D.C. *

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX B - WRITTEN OPENING STATEMENT OF THE RANKING MINORITY MEMBER, MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES, OFFERED BY REPRESENTATIVE WOOLSEY *

APPENDIX C – LIST OF COOPERATIVE EFFORTS UNDER THE FEDERAL MINE SAFETY AND HEALTH ACT, SUBMITTED BY J. DAVITT McATEER, ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. *

The Subcommittee met, pursuant to call, at 2:16 p.m., in Room 2175, Rayburn House Office Building, Honorable Cass Ballenger Chairman of the Subcommittee presiding.

Present: Representatives Ballenger, Owens, Woolsey, and Kucinich.

Staff Present: Victoria Lipnic, Professional Staff Member; Robert Borden, Professional Staff Member; Molly Salmi, Professional Staff Member; Heather Oellermann, Staff Assistant; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Patrick Lyden, Professional Staff Member; Michael Reynard, Media Assistant; Deborah Samantar, Office Manager; Peter Rutledge, Minority Senior Legislative Associate/Labor; and Brian Compagnone, Minority Staff Assistant/Labor.

Chairman Ballenger. The Subcommittee on Workforce Protections will come to order. The Subcommittee is meeting today to hear testimony on a review of mine safety and health, the state of the industry today. Under rule 12(b) of the committee rules, any oral statements at the hearings are limited to the chairman and the ranking minority member. This will allow us to hear from our witnesses sooner and help members to keep their schedule. Therefore, if other members have statements, they can be included in the hearing record.

Without objection, the record will be held open for 14 days so that all statements, testimony, and other materials referenced during the hearing will be inserted into the hearing record.

We are here today to review the Mine Safety and Health Act and the state of the mining industry, particularly as related to the record of the industry on safety and health. I am also interested in hearing about the Mine Safety and Health Administration's administration and enforcement of the act.

Let me start by taking a moment to welcome our witnesses. We appreciate their willingness to take the time out of their busy schedules to testify before the Subcommittee. And I apologize for the vote. And I may have to hold you all to the little light there because we have another vote coming up in about an hour, and at this time of the year it is fairly important.

I would also like to welcome our other guests in the room, both miners and operators and all of those who are interested in maintaining a prosperous and safety-conscious mining industry, and I am especially pleased that MSHA Assistant Secretary McAteer is here with us to give MSHA's firsthand views.

More than 350,000 people work in more than 14,000 mining operations across the country. Because so many industries in the country rely upon the products of the mining industry, a healthy mining industry is important not only to those areas of the country where miners are employed, but also in the overall economic health of the nation. We all know that mining is a dangerous occupation, and while the economic health of the industry is important, the health and safety of those who work in the mines is of paramount importance. One cannot succeed without the other.

I am certain that it will come as no surprise to Mr. McAteer that those of us in Congress often hear a common refrain from many of our constituents in the mining industry, and the refrain generally goes something like this: Why can't MSHA work with us to help improve our safety situations in our mines rather than simply handing out citations?

For example, I was recently told by a quarry operator in North Carolina that they received a $110 citation from MSHA for a lid not being on a trash container. That may be one minor example of nitpicking by MSHA, but the point shouldn't be missed that the operators and indeed, I expect, workers want MSHA to focus on the real safety concerns in their mines and to help them achieve their goals together, rather than have their resources diverted to trivial matters.

The Federal Mine Safety and Health Act has now passed its 30th birthday. We certainly cannot deny the successes in improving safety conditions over the past 30 years. Given those successes and the emphasis placed on the safety and health by the industry today, it may be time for those of us in Congress to consider whether there is some opportunity for improvement of the act. The role of Congress is to ensure that our laws are current and appropriate to conditions and problems today.

I have spent enough years in business to know that there will be always those who play by the rules and those who do not. I by no means mean to suggest that the imperative of safety under the act should be diminished. But the challenge for those in the industry, and particularly for those of us who legislate, is to know where it is and how it is the act itself can be improved upon to meet the needs of the modern mining industry for both operators and miners alike.

I expect that there may be some strong opinions about that view in the room today, and I look forward to hearing all of them, and I look forward to an honest debate.

WRITTEN OPENING STATEMENT OF CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES – SEE APPENDIX A

Do you want to have an opening statement?

Ms. Woolsey. Yes, sir, I would like to read words on behalf of Mr. Owens.

Chairman Ballenger. That is fine. The floor is yours.

Ms. Woolsey. Thank you, Mr. Ballenger, and I can read these words on behalf of ranking member Major Owens, being absolutely sure that every word he says I would agree to. So take it from both of us.

Mr. Owens would say: Thank you, Chairman Ballenger, for yielding to me. Let me say at the outset that I believe that the Coal Mine Health and Safety Act of 1969, and the Mine Safety and Health Act of 1977, have been among the most successful laws that the Congress has every enacted.

Total mine fatalities in the decade before enactment of the 1977 law ranged from 435 to 254. In the 1990's, annual deaths in mining have ranged from 112 to 80.

The American mining industry today is the world leader in safety and health. This is a significant accomplishment for which industry, labor, and government all deserve credit.

Despite this significant achievement, mining remains a very, very hazardous occupation. Too many miners, 90 in 1999, continue to be killed at work. Too many more continue to be--oh, Mr. Owens, I am being you. [Representative Owens joins the hearing.]

Too many more continue to be seriously injured and too many are crippled and die early as a result of occupational exposure and disease.

It is certainly appropriate for us to examine the state of health and safety in the industry and to see if there are things that we can do better. In doing so, however, we

must be especially mindful that we do not undo the good that we have accomplished or attempt to fix what is not broken.

For example, it was suggested at a 1998 hearing on this subject that it may be appropriate to eliminate the mandatory inspection provisions of the law. I believe that the mandatory inspection provisions of the law are among the law's most successful provisions. They help to reduce accidents and injuries by identifying hazards before a miner is injured or killed.

They serve to provide regulators with in-depth knowledge of unique conditions at each mine and enable regulators to tailor compliance assistance activities. They serve to enhance the participation of workers in promoting health and safety and familiarize mine operators with enforcement processes and expectations.

Finally, they serve as an effective incentive to ensure compliance with safety and health regulation. Needless to say, I am very doubtful that elimination of mandatory inspections would serve to promote safety and health.

We have a very distinguished panel before us this afternoon. And I am going to give this now to Mr. Owens because he is going to introduce somebody in particular.

WRITTEN OPENING STATEMENT OF THE RANKING MINORITY MEMBER, MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES, OFFERED BY REPRESENTATIVE WOOLSEY - SEE APPENDIX B

Mr. Owens. Thank you very much. We have a very significant panel before us this afternoon. I particularly want to welcome Mr. McAteer, whose views were noticeably missing from the last MSHA hearing, and Mr. Main who has testified on behalf of the United Mine Workers of America.

Our country has benefited from the products of the mining industry. We owe it to those who provide that benefit to ensure that the conditions in which they work are as safe and healthy as possible. I look forward to the testimony of the witnesses and as to what we can do further to that end. Thank you.

Chairman Ballenger. First of all, for those of you that do not know, I want to congratulate the Major who had a very close primary yesterday, but he won and welcome back.

Mr. Owens. Thank you, Mr. Chairman. You will have me to kick around for a little longer.

Chairman Ballenger. Or vice versa. Let me again, if I may introduce several people. First of all, Mr. J. Davitt McAteer, Mine Safety and Health Administration of the United States Department of Labor. Mr. Bruce Watzman of the United Mining Association. Mr. Kim Snyder, testifying on behalf of the National Aggregates Association and the National Stone Association. Mr. Joe Main, United Mine Workers of America and Mr. L. Joseph Ferrara, Jackson & Kelly, P.L.L.C.

Let me remind our witnesses that under our committee rules they should limit their oral statements to 5 minutes but their entire written statements will appear in the record. We will also allow the entire panel to testify before questioning the witnesses.

With that said, Mr. McAteer, we are going to try to hold you to the 5 minutes if we can because we have got more votes coming up and I do not want to interrupt anybody if I can. Mr. McAteer, it is your time. Fire away.

Mr. McAteer. Thank you, Chairman Ballenger, Mr. Owens, Ms. Woolsey. I am pleased to appear before you today to discuss the activities of the Department of Labor's Mine Safety and Health Administration.

The Federal Mine Safety and Health Act has been an extraordinarily successful law. It provides for a comprehensive approach to mine safety and health combining enforcement with education and training as well as a wide range of cooperative efforts to promote safety and health throughout the mining industry.

I am proud to say that the last 8 years have been the safest on record for the U.S. mining history, as the charts to my right indicate.

The American mining industry entered the 20th century with the worst safety and health industrial record in this country or abroad. We have entered this century with the best mine safety and health record among producing countries in the world.

The U.S. has the largest mining industry in the world in terms of combined or overall production. It is also perhaps the most productive. Coal production is around 1.2 billion tons per year, which has broken all U.S. records in recent years and makes us the largest producer worldwide. Yet it takes only 114,000 coal miners to produce the fuel that gives us 57 percent of our nation's electric power.

Mining is also a highly competitive industry with strong pressures to keep costs down and prices low in coal and many other sectors. Although more than 350,000 people work in the mines, in more than 14,000 mining operations across the country, U.S. miners churn out silver, crushed stone, iron, phosphate, granite, cement and clay, more than 50 products, and produce 9 tons of aggregates per person annually.

Mining is distinct from other industries. Miners face special challenges on the job. Conditions in a mine can change daily and hourly sometimes, sometimes minute by minute.

Miners must cope with massive machinery, confined space, explosives, potentially dangerous gases, and unpredictable geology. Mine disasters spurred Congress to pass the strong law in 1969 and then to expand it to include metal and nonmetal in

1977. The current Federal mine safety and health law is a success. Under this law safety has improved in virtually every sector, both underground and surface, coal, metal and nonmetal as well.

According to the BLS, however, miners still face the highest rate of death among major industrial sectors, and there is a need for constant vigilance. For instance, this year the coal industry had its first fatal explosion since 1994, when two miners lost their lives. Last year, 91 miners died on the job. Too many deaths still occur and thousands of nonfatal mining accidents cause personnel to suffer heartbreak and substantial economic loss.

The Act was designed to provide a preset number of inspections in each mine in the country, four at underground locations and two at surface mines. It was designed to have inspectors issue citations for violations of the regulations. Among the arguments supporting this approach is the economics of mining. Tough competition can and does cause a temptation to some to cut corners. MSHA's inspection presence helps to maintain a level playing field for all operators where safety and health is concerned.

This does not mean that every inspection results in a citation being issued. In fact, approximately 30 percent of our inspections per year do not result in citations being issued. In addressing the safety and health program under my direction, MSHA has not relied on enforcement alone. First, we work with the mining industry to identify a safety and health problem. Secondly, we share that problem with the whole industry and we share possible solutions. And finally, we add an enforcement component. We do not believe in a "gotcha" mentality. We believe in a mentality which points out the problems and then attempts to address those problems.

We also believe in cooperation, working together with mine operators, miners and unions, State and local governments and community groups to make mines safe and healthy.

The Federal Mine Safety and Health Act provides many opportunities for such cooperative efforts. I have a list that I would like to submit for the record of the cooperative efforts we have taken since 1994.

APPENDIX C – LIST OF COOPERATIVE EFFORTS UNDER THE FEDERAL MINE SAFETY AND HEALTH ACT, SUBMITTED BY J. DAVITT McATEER, ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C.

Mr. McAteer. Let me focus on a couple of examples, however. One example is in the area of training; that is to say, Part 46 of the regulations. The Mine Act requires training for all new miners and annual refresher training for experienced miners. However, for almost 20 years MSHA was prohibited from enforcing training regulations at approximately 11,000 surface and nonmetal mines affecting nearly 125,000 miners. In 1997 and 1998 alone, more than 80 percent of the miners fatally injured at these operations had not received adequate safety and health training.

Last year, as a result of the leadership of Chairman John Porter of the House Appropriations Committee, Congress removed a rider from our appropriations bill. We worked closely with the coalition, which included the National Stone Association, the Laborers International Union, the Steel Workers of America, the Portland Cement Alliance, and other industry and labor representatives, to develop a safety and health training regulation that is tailored to surface nonmetal mining operations. The House Appropriations Committee instructed MSHA to propose and finalize the new requirement within a year, before September of 1999. We worked hard and reached that deadline.

On October 2, 2000, this year, MSHA Part 46 will go into effect. The rule meets the desires of industry for regulation designed specifically for nonmetal mining operations and we believe will help to ensure nonmetal miners are adequately trained to protect themselves from injuries or illness.

To help the mining community get ready for compliance we have distributed a starter kit for mine operators, created an inspector's guide with lessons planned, and placed compliance information on MSHA's website. We have worked extensively with the industry to make certain that they are prepared for this new regulation. We feel confident that they are ready.

A second example is an old example of the way we work cooperatively. We have worked with the mining industry to learn from every mine accident. After each fatality we produce a one-page summary with a picture. We mail fatalgrams to every mine and post them on our website. This seemingly simple approach is quite effective because it has the impact of taking one accident from one workplace and sharing it with others in other workplaces. The fatalgrams are used for training materials by the supervisors and miners in all locations.

A third example is a new approach we are trying. MSHA technical support now takes part in every fatal accident investigation. Their engineers and experts work with our inspectors to develop practical remedies to prevent accidents from occurring in the future, as the one that occurred just recently. We share these remedies with....

Chairman Ballenger. Mr. McAteer, if you could, could you speed it up? The little red light went on.

Mr. McAteer. I am sorry, I didn't see it. I apologize. Perhaps I did not look at it. Perhaps that was the reason I did not see it. I will try to finish up very quickly because I understand the time.

We have tried to get information out with regard to the accidents and these remedies are put on our website and developed for other people to use. The accident buster is a program that we think will, again, lead to improvements in safety and health.

Our bottom line is to try to ensure that every working miner comes home every day; that is to say, we need to have an industry in this country where we reduce the level of fatal accidents from 90 to zero. To get there we need to take steps. We are looking for ways and we hope this committee can share with us its information on how we might achieve that.

Thank you, sir.

WRITTEN STATEMENT OF J. DAVITT McATEER, ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH, MINE SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C.- SEE APPENDIX D

Chairman Ballenger. Thank you, Mr. McAteer.

Mr. Watzman, you may begin.

Mr. Watzman. Thank you, Mr. Chairman, for this opportunity and specifically, Mr. Chairman, let me thank you for your continued interest in improving miner safety and health. As the Assistant Secretary noted earlier, the last 8 years have been the safest on record for the United States mining industry, but we need to do better and we believe this hearing is an appropriate starting point to begin discussing what steps we can take collectively to build upon the tremendous improvements that miners and mine operators have made in improving safety and health.

As we consider what must be done, we must recognize that the industry has undergone dramatic change. Consolidations and closures have become increasingly commonplace and MSHA's policies and programs must be structured to accommodate this change. We are producing more at fewer operations with fewer people, and this trend will continue.

Surviving today's difficult economic environment necessitates doing one's job more effectively, more efficiently, safer, and at reduced costs. At the outset, Mr. Chairman, I must offer a few comments on the importance of mining to our everyday lives, a fact overlooked by most Americans. The words you read here were originally processed through computer hardware and software systems that required dozens of mine minerals ranging from clay to copper to gold. In other words, before hardware and software you must have earthware, the minerals that form the foundation upon which the U.S. economy is built. The ink that forms the words you read is derived from minerals. The light by which you read may be produced by a tungsten filament fueled by electricity transmitted through copper wire and generated by the burning of coal.

Yet despite its indispensable contribution to the American economy, mining at its core is a risky business subject to the perverse winds of both geology and economics. Still to the industry's credit, technological ingenuity and prudent planning have enabled us to contend with and even overcome these challenges while improving the safety and health conditions for our nation's miners. Continued improvement in mine safety and health will, we believe, largely depend upon maintaining vigilance against the causes of major accidents while focusing more intensely on the causes.

We believe it is time to reevaluate the current regulatory and enforcement program. The resources of both government and industry must be redirected towards the

prevention of accidents, injuries, and illnesses and away from those policies that lead to confrontation. Decisions must be based upon sound science and recognition of the industry's commitment to further improving miner safety and health.

We believe certain fundamental reforms must be implemented for continued improvements. First, MSHA must base resource allocation decisions on documented need, rather than unexamined conformity with the directives contained in the Mine Act.

Second, inspections must be more focused and the quality of inspections must be enhanced.

Third, rulemaking and policy decisions must be achievable, authorized by and in compliance with the law, and developed on the basis of sound science and the furthering of miner safety and health, rather than the ease of enforcement.

Fourth, violations and their intended sanctions must be distinguished according to degree of seriousness.

And lastly, a more cooperative and constructive climate must be fostered between MSHA and its constituencies.

Regrettably, while the industry has undergone dramatic transformation, MSHA's procedures and inspections practices have not. Outdated policies which hinder safety and health, inappropriate resource allocation, and the continued reliance on outdated procedures threaten the safety and health achievements that have been attained.

Continuing to mandate a minimum number of rigid inspections with no consideration of performance will not help bring down the incident rate. And, Mr. Chairman, I would like to point to the chart that Mr. McAteer put up. He is correct, mining fatalities have dropped dramatically. We would like to see it drop even further. But what one would recognize when looking at that chart is that within the last 10 to 15 years, we seem to be operating within a narrowly defined range: 80 fatalities, 90 fatalities, somewhere between 80 and 100. That is far too many.

But the question that we have to ask ourselves is---are the programs and the policies that MSHA currently has in place the proper ones to allow us to break through and drop below the current levels that we are operating within? We do not think they are. We believe that some changes are necessary to enable all of us to work cooperatively to drop below the current levels.

Today, mine safety and health professionals face challenges far different than those anticipated when the act was enacted. Different geologic conditions, faster mining cycles and changes in the way work is conducted introduce potential complications whose solutions require the introduction of new and innovative responses. Today's challenge is to analyze why accidents are occurring at a mine and then use that analysis as the basis for designing programs or techniques to manage the accident promoting condition or cause.

Where existing technology is not sufficient, mine operators must be afforded the flexibility to use all nontraditional means to protect miners' health. Mr. Chairman, we

believe adoption of the reforms I outlined earlier will enable us to build upon the reductions that we have achieved, and we look forward to working with the members of the Subcommittee to accomplish that.

Thank you.

WRITTEN STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH, NATIONAL MINING ASSOCIATION, WASHINGTON, D.C.- SEE APPENDIX E

Chairman Ballenger. Thank you, Mr. Watzman.

Mr. Snyder, you may begin.

Mr. Snyder. Thank you, Mr. Chairman, and thank you, members of the Subcommittee. My name is Kim Snyder, I am Co-chairman of the newly merged National Aggregates Association and the National Stone Association and President of the Eastern Industries in Center Valley, Pennsylvania. With me today is Nat Parker and Nat is the Safety Director for Hedrick Industries in Salisbury, North Carolina, and a member of the NAA-NSA Safety and Health Committee.

NAA-NSA represents over 850 producer members across the nation whose 80,000 men and women produce 90 percent of the crushed stone and 70 percent of the sand and gravel used in our nation in a number of areas, but specifically in use in asphalt and concrete.

The intent of Congress in passing the Federal Mine Safety and Health Act of 1977 was to protect and preserve the health and safety of the nation's mining workforce. To do that requires an infrastructure of trained, dedicated professionals whose single-minded purpose is the health and safety of the workforce they are charged with protecting.

Besides Nat, I am proud and pleased to be accompanied by 27 members of the NAA-NSA Safety and Health Committee who are behind me. Their work has played a significant role in the steady reduction over the past two decades in the number of injuries per hours worked as well as a dramatic decrease in fatalities.

Having said that, however, we will not rest until our industry goal of zero injuries is realized. I would like to make my first point in the form of a question: Is the Mine Act properly focused on education and abatement, or only enforcement?

The Act currently is enforcement centered. Under section 104(a), an inspector must issue a citation if he or she believes that a violation as occurred. Experienced members with eligible safety records would have preferred an act that could authorize an inspector to issue something like an abatement order, which identifies a problem and orders a correction within a specific period of time, say for example immediately up to several hours, and then if not corrected within a time frame, a citation with a penalty should be and would be issued.

Mr. Chairman, I have brought with me a document prepared by the Iowa Limestone Producers Association on behalf of its members that has been presented to the ombudsman for the Small Business Administration. It reports a projected increase of

1,660 percent in MSHA fines levied against aggregate operations in that State between 1997 and this year, and also cites examples of inconsistent enforcement by MSHA of its regulation. I ask for your indulgence to insert this into the record of this hearing.

Chairman Ballenger. Without objection.

APPENDIX F – WRITTEN STATEMENT OF THE IOWA LIMESTONE PRODUCERS ASSOCIATION INC., DES MOINES IOWA

Mr. Snyder. Thank you, sir. It is just these issues of overzealous and inconsistent enforcement that discourages cooperation between industry and government, which brings me to my second point; namely, that NAA-NSA and MSHA had set a new standard of cooperation and partnering through Part 46, but it appears that it has diminished that partnering. Specific instances of how MSHA and NAA-NSA have worked together are presented in my written comments. We would like to see in future rulemaking a paradigm of industry, labor, and government working together.

Of the four regulations about to hit our industry within the next 4 months only one, Part 46, was created in the part due to the intensive collaborative efforts between industry, labor and government.

An important third issue has to do with the cumulative impact of multiple new regulations over a short period of time. Mr. Chairman, there are four regulations about to be enforced on our industry within the next 4 months: Part 46, noise, diesel particulate, and hazardous communication. This is in part where our association thinks MSHA right now could be more attuned to encouraging compliance rather than discouraging by multiple new enforcement practices.

MSHA should not impose this many new regulations on one industry in this short period of time. Of these four regulations, we think one is premature and another is redundant and unnecessary. The diesel particulate rule is premature due in part to the problems in sampling and analytical procedures, and we have requested the rule as proposed, at least be delayed until developments in recent research and ongoing research activities can be properly assimilated.

MSHA has not agreed with this position, so we are taking our case to you and everyone in Congress who might listen. The rule shouldn't be utilized without employing the best science available and Members of Congress itself have formally asked the Department of Labor to do just that. We respectfully ask for your help in this endeavor. As for the hazardous communications rule, or HAZCOM rule, it was first proposed by

MSHA over a decade ago. We have repeatedly advised the agency that this rule is not necessary, due in part to the existence of OSHA's HAZCOM rules, which effectively covers our industry's products. We have made the same arguments to the Office of Management and Budget, where the rule is now under review.

We are again seeking your help and the help of your colleagues to defer or turn down this proposed regulation as an unnecessary burden on the industry that will provide no further gain in safety or health of the workers or the public at large.

Mr. Chairman, MSHA intends to propose all these rules. Four regulations in four months is not a formula for full compliance, and not because we are not committed to full compliance, but because the time frame is simply unrealistic. Our association has called for MSHA to conduct a cumulative impact assessment on what the effect on our small business members would be by having all of these rules hit them at once. To date we haven't received a response.

My fourth and final point, Mr. Chairman, is that MSHA needs to fully fund the State Grants Program. In the Mine Act section, 503(h), Congress authorized an appropriation of $10 million annually to fund section 503, the State Grants Program. Despite this congressional mandate, the program has never been fully funded. Part 46 and the noise rule require extensive compliance assistance which state grant programs provides to all of our industries and can help those industry operations that are not NAA-NSA members and who therefore are more dependent on government for instruction and training.

While MSHA asked for a 25 percent increase from the appropriation for fiscal year 2001, the program at that level would be underfunded by a full $2.4 million. We recognize this is an authorizing Subcommittee, but we ask for your support in these appropriation processes to provide the full $10 million in funding for State Grants Program for the fiscal year 2001.

Mr. Chairman, distinguished members, these conclude my remarks. My colleagues and I thank you very much.

WRITTEN STATEMENT OF KIM SNYDER, PRESIDENT, EASTERN INDUSTRIES, CENTER VALLEY, PENNSYLVANIA; ACCOMPANIED BY NAT PARKER, SAFETY DIRECTOR, HEDRICK INDUSTRIES, SALISBURY, NORTH CAROLINA, ON BEHALF OF THE NATIONAL AGGREGATES ASSOCIATION – NATIONAL STONE ASSOCIATION - SEE APPENDIX G

Chairman Ballenger. Thank you.

Mr. Main, you may begin.

Mr. Main. Thank you, Mr. Chairman. I appreciate the opportunity to be here today and appreciate the opportunity to provide what insight we can on the Mine Act to this Committee. Congressman Owens, Madam Woolsey, Congressman Kucinich, I appreciate you being here today to hear about what is happening to this great Act that was created by Congress in 1969.

On behalf of all the miners in this country, I think there is one safe statement to be said, that the Mine Act created by this Congress in 1969 had the most impact of anything else that has ever happened in our lives to improve mine health and safety. And I think as you talk to miners throughout the country, one of the things that is realized is that they hold that Mine Act very sacred because of that very reason. They know that they are alive today, many of them, they are not ill, not injured, because of the significant impact of the 1969 Mine Act and the wisdom of Congress in 1969 to create that for them.

And if you just step back and take a look at history, as has been pointed out before, the significance of that act can be, I think, very well seen. The 30-year period prior to the existence of the Mine Act, there were 19,144 coal miners killed in this country. 19,144. If you look at the 30 years after the Mine Act went into effect, that number was reduced by 83 percent. And those numbers, I think, tell a clear story about the impact on saving miners' lives.

In the metal and nonmetal industry, the Mine Act went into effect covering those workers in 1977, when the Act was amended. And if you look at the 23-year period prior to the Act, there were 3,889 miners killed in this country. The 23-year period past passage of the Act saw that there were 40 percent fewer mining deaths in the metal-nonmetal sector.

One of the things that I think is really important to bring about this change, and Congress wrestled with this issue many times, there were several acts created by the Congress prior to 1969 that they felt were ineffective in really reining in the unsafe and unhealthy work condition in the nation's mines and they made a determination that they could not rely on voluntary compliance with whatever standards they designed to bring about the kind of change that the country needed to clean up the mining industry.

As a result they did design as part of the fundamental part of that Mine Act requirements for specific standards to be in place, known throughout the industry, that anyone engaging in mining, particularly at that time coal mining, would have to comply with if they wanted to get into the business of mining coal in this country, and that those who failed to comply with those would receive enforcement actions by the Federal agency that was created.

Because, as Congress realized in 1969, coal mining is a very, very dangerous occupation, miners go to work in an environment where they are constantly unleashing hazards. By the nature of the work, they create a hazard that has to be monitored, has to be identified, and has to be controlled. Whether it is an underground mine or surface mine, we are in the process of ripping apart the earth creating unstable mine roofs, creating unstable high walls that can come in and crush miners, putting dust in the air all the time and if you do not control the dust it will make miners sick. The machinery, working in confined space, chemicals in confined spaces, they have to be identified and controlled.

And there is a need on the part of the employers to make sure that they have the mechanisms in place, which is, again, a part of the act, to examine the workplace miners are in, identify those hazards, and take corrective action.

That is the responsibility. If it fails, miners get sick, miners become injured or miners die. And on the part of the government there is a realization that they needed to do the same thing to backcheck the process that the employers had in place if there was truly going to be a reduction of mining deaths and accidents in the mining industry.

I know I am running close out of time. I want to just close out by saying that all you have to do is look at the historical record of the Mine Act, pre and post its

application, and you can see the tremendous effect it has had. There is some troubling numbers that I think that we need to understand as well.

Last year, we had an increase in mining death both in coal, metal and nonmetal. They were up in both sectors. I looked at numbers recently and found that the coal and metal and nonmetal fatalities are up again this year. There have been approximately 62 miners killed already this year in this country. There were 90-91 killed last year. And that has shown to be increasing over the last few years. And they have been killed by a variety of reasons, of which I am sure that it has probably already been placed in the record, and we are more than willing to talk about those.

But there are clear standards that need to be implemented to protect these miners. We know that. We have miners breathing unhealthy diesel fumes. We have to fix that problem. We cannot ignore it. We have miners breathing unhealthy silica dust, coal dust. We have to fix that problem. We know it. We have miners that are faced with chemicals in the workplace. And unlike OSHA, our miners do not have the same protections that general workers have and they need to have that. There are miners becoming sick from different kind of chemical solvents destroying their lives, destroying their families, and it is an economic impact on the country as well.

We have miners that are exposed to faulty self-contained self-rescuers. It is a constant problem in the mining industry that we are constantly finding that the self-rescuer devices that miners have available to them are faulty and have been faulty for some time and miners are relying on them. And if there is a fire and they go to use those units, they may perish because they are faulty. Thousands have been removed from the mines. Those are the kinds of things that we need to focus on that get at the heart, mind and soul of fixing some of the problems.

Thank you very much.

WRITTEN STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR FOR OCCUPATIONAL HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA, FAIRFAX, VA- SEE APPENDIX H

Chairman Ballenger. Thank you.

Mr. Ferrara?

Mr. Ferrara. Mr. Chairman, members of the Subcommittee, and fellow panelists, thank you very much for inviting me here to testify today. I am here representing the law firm of Jackson & Kelly as a member of that firm, which has its headquarters in the great mining State of West Virginia. I work in their D.C. office.

I have been asked to testify here because my career has spanned both government service under the Mine Act, and at present, private representation of mining companies involved in the mining program. For 12 years, I was general counsel of the Federal Mine

Safety and Health Review Commission, which provides the adjudicatory services under this Act, and had a wonderful opportunity to participate in the development of law under the statute.

What I have come here to talk with you about are balanced and responsible suggestions for further improvement of the Mine Act as we move into this new century. The Mine Act and its critical antecedents are now 30 years old and although in many ways the Mine Act does a good job in some respects, it is showing its age. And I would like to suggest, as other panelists from industry have suggested, that there are ways that the performance and achievements of this Act can be improved and we shouldn't be afraid to look at new directions.

It is important to focus on the tremendous achievements that the industry has made in improving safety and health in the last 30 years. In addition to Mr. McAteer's chart, I would like to add just one telling statistic. In 1997, according to the National Safety Council, the nonfatal occupational injury rate among the mining sector was 5.9 per hundred workers, the third lowest of the eight industrial sectors being reported on. In fact it was lower than retail and wholesale trade.

I think this is the kind of example that drives home in a very concrete way the tremendous progress that has been made. And I do think it is fair for the industry to ask, 30 years after the enactment of this statute in an industry that is apparently now safer in some respects than wholesale and retail trade, that the present ratio of one inspector to every 16 mining properties and whether the act's focus on enforcement and serial citation and inspection is still the best and most efficacious way to achieve progress in this area.

What I would like to suggest for your consideration today are four relatively modest proposals of revisiting the statute to focus instead of on enforcement and punitive measures, cooperation, incentive, flexibility, and a consequent freeing of MSHA's resources so that it can focus its resources and attention in a prioritized way on the truly major problems that remain to be solved.

The four suggestions are as follows, and they have been referred to in part in some of the comments that you have heard already today:

One, there should be balanced and reasonable incentives provided to our safest and most conscientious mining properties to receive relief from the number and scope of the mandatory annual inspections, the twos and fours. We are not suggesting through this proposal that annual mandatory inspections be eliminated, but that their number and scope be reduced if a property has a demonstrated achievement in the field of safety and health and a good compliance record. This would provide incentive for the protection of miners and would provide relief to a heavily regulated industry.

Secondly, as you mentioned, Mr. Chairman, in your opening remarks, minor and trivial violations should be subject to immediate abatement and correction, as opposed to the current process of serial citation and penalization. This would remove from the

screen trivial disputes that shouldn't be consuming the time of either the agency or the

industry. And I can assure you, Mr. Chairman, that nothing would go farther in helping to inspire the confidence of the regulated community that our government is focusing on what is truly important.

Finally, in the health-related field, the Act should be amended to allow for variances from health-related standards. At present for some unexplained reason, it focuses only on safety standards. The OSHA Act allows variances in both safety and

health and the Mine Act should be reformed to allow health variances as well. This is particularly important, Mr. Chairman and Subcommittee members, given the fact that the present agenda of the Mine Safety and Health Administration is so heavily focused on health areas.

Last but not least, the use of personal protective equipment should be fully recognized and encouraged throughout the body of MSHA's regulations as an important, cost-effective, easily available method of offering daily protection to miners. The basic problem with the Mine Act 30 years into its administration is that it is an act that tries to do everything at all times, in which everything seems to be a priority. It is an act, which relies almost solely on enforcement, inspection, penalization and citation.

It is now time to realize that to achieve the most important goals that remain to be solved, it is very important to focus resources so that the major problems can be addressed and some of the minor problems can be handled in much more efficient and simple ways. Thank you very much for giving us this opportunity to discuss these areas with you.

WRITTEN STATEMENT OF L. JOSEPH FERRARA, MEMBER, JACKSON & KELLY, P.L.L.C., WASHINGTON, D.C.- SEE APPENDIX I

Chairman Ballenger. Thank you. First of all, especially for Mr. Main, I would like to let him know that when I came on this Committee in 1986, we had a lady here that said you can't rule on MSHA until you have gone down in a mine. And I will be frank, I had never been in a mine at that time in my life. And I said to myself I think the worst job that I could think of probably would be in a coal mine.

So I went to western Pennsylvania and he took me down in a coal mine. It was a very interesting trip I took down there. When I came out I decided that the worst job I ever could have would be to mess with a coal mine. I understand what you are talking about.

I would like to ask somebody, the open face mining that is done in underground mines, I know at one time I was reading an article about Norfolk Southern's great shipments of coal out of West Virginia and that general area to Norfolk for export. Is coal now an exportable product to any large extent in this country?

Mr. Watzman. Yes, Mr. Chairman, we continue to export coal around the world and it adds positively to our balance of trade. Yeah, we do and the Assistant Secretary reminded me, in any given year, we export somewhere around 100 million tons of coal.

Chairman Ballenger. That is great. The one thing that came to my mind, and to some extent you mentioned it, Mr. Ferrara, and Mr. McAteer and I talked about it earlier before the hearing started. The background sheets that they gave me to read up on were heavily oriented towards coal dust and the breathing problems of miners and ex-miners. They also dealt with the fact that the enforcement of how that particular cleanliness of air is probably corrupted by the interests of the miner to keep his job and the mines not wanting to pay the additional costs to clean that area.

Have you got any expression along those lines? I didn't hear it in what you said.

Mr. Ferrara. I would say that today's mines are deeply concerned in protecting the air and protecting the miners and working on solutions and engineering and administrative fronts to control these problems. What we are asking for today is that in its regulations, MSHA gives equal weight to the use of personal protective equipment that has been proven and that is effective and that provides daily protection for any deficits that may occur. It is simply not in the enlightened self-interest of the industry not to address this problem. It is trying to address this problem, and what we are asking for is flexible tools and enforcement flexibility in handling those problems.

Chairman Ballenger. But in personal protection, are you speaking of a mask?

Mr. Ferrara. Yes, it can be respirators and other devices. Particularly in the coal mine dust context to which you are referring, new devices have come on line in the last several years that are proving very effective. You may have heard of Airstream helmets. I would like to personally commend the agency for including some reference to the use of personal protective equipment in the form of these helmets in their most recent coal mine dust proposals. I think the message they have gotten pretty thoroughly from industry on this proposal is great. It is a baby step. Let's take more steps.

These are the kind of things that modern miners can put on, go into a mine and be doggone assured that they are going to have the daily protection that they need, because in some cases modern engineering and technology simply is not up to the complete task on a constant basis of protecting from occasional overexposures.

Mr. McAteer. Mr. Chairman, if I might answer that as well.

Chairman Ballenger. Yes?

Mr. McAteer. In 1995, we embarked upon a program to make over the dust program or the dust monitoring sampling system in this country, and we began with an advisory committee made up of industry, labor and the academic community to try to set out a series of recommendations to improve the dust collection, to improve the monitoring, to improve the protection that the miners receive.

Since that time, we have adopted a number of those recommendations and most recently, we have proposed a set of regulatory changes which will go about addressing or propose to go about addressing the problem of dust in coal mines in this country.

Chairman Ballenger. Does that include the personal protective property that he was speaking of?

Mr. McAteer. It does include personal protective equipment. In the case of Airstream helmets, in this instance it is Airstream helmets under very limited circumstances. It is our experience that virtually every mine can in fact achieve, with engineering controls, the levels of dust protections that are necessary. But in those certain instances where they are not able to achieve that, we would permit under the proposed rule the introduction of Airstream helmets.

Chairman Ballenger. Is cost-effectiveness involved in that? I would think personal protective units might be substantially cheaper. I am not trying to be cheap. But if the idea that some sort of helmet you could wear yourself would be a lot cheaper than having a whole system trying to clean the area in the mine itself.

Mr. McAteer. We would have to disagree with your approach there, Mr. Chairman. Our approach is to, as is the instance of every other occupational agency, both in this country and abroad, is to adopt the hierarchy of controls first, engineering controls, administrative controls and then personal protective equipment.

Our experience is, after 25, 30 years of the law, that we can, in fact, in 99.9 percent of the cases control the dust. Because dust has two elements that are risky. One is simply the inhalation of it, and secondly that it can cause explosions. So there are lots of reasons why we need to keep dust down, to keep it under control, and to in fact eliminate it from the miners' breathing.

But in those instances that we have tried all the engineering controls for a period of time and they haven't worked, we would then consider the use of Airstream helmets.

Chairman Ballenger. Okay. Mr. Snyder, first of all, you mentioned four rules in 4 months. Even OSHA does not do that. Do you remember what you said, what the purpose was that in your statement that they actually came up with a rule a month to change the way you operate?

Mr. Snyder. Yeah, basically I mentioned that we are faced with, over a 4-month period of time, four rules, one of course being Part 46, which I think is a model of how industry, labor and government can work together, and of course that is a training section can work together to promulgate something that will work. And by that, I mean I think it has been our experience if you can get somebody to buy into something and embrace it and own it, they are much more apt to make it work, and I think that is the case with Part 46.

But there is the diesel particulate issue, there is the noise issue regulations that are coming up, and the other one, the HAZCOM rule. And there is being work done, for example, let's talk about diesel particulate. NIOSH and NCI are continuing to do studies with regards to deciding what is the problem, if there is one, and what is the best way to address them.

I know that we have encouraged MSHA to wait until that work has been completed. I know members of the Senate have written a letter to MSHA saying that they think they ought to wait until we have the full science before we just jump into this.

Certainly, if the situation was such that, you know, there was imminent danger of the workers, something needs to be done, but we do not believe that is the case.

Chairman Ballenger. I am ruled by the red light also. So if you do not mind. Major?

Mr. Owens. Yes, Mr. McAteer, could you discuss in a little bit more detail your approach to compliance assistance and outreach? In particular, since all inspectors must cite violations noted during their inspections, do you think that there is enough flexibility in the law to allow MSHA to work with mine operators? Does that requirement to cite violations deter mine operators from requesting compliance assistance when it is needed?

Mr. McAteer. Thank you, Mr. Owens. The Mine Act is a quite specific act in terms of the citation violations. If the mine inspector sees a violation, he is required to cite that violation. However, the act does provide for a great deal of flexibility and allows us under certain circumstances to assist in the development of inspections or compliance assistance visits where, upon request, mine operators can ask us to come out under certain circumstances and provide an inspection process that does not result in a citation.

The compliance assistance program is one that is utilized by both industry and labor and by ourselves as well to try to point the mine operator and the miners' representative toward particular problems, toward areas, to see that those problems and areas are addressed.

There is also a system under the Mine Act which allows us with new mines to go out and to assist them in development of their program and develop assistance for them to understand our process, for them to take available information that we would provide; for example, technical in nature, to help them ensure that their program, that their systems are in compliance with the requirements and that type of assistance is available.

Finally, we have an education and training component, our EFS operation, which allows for our instructors, our education and training people, to go to the mine and assist in the development of a safety and health program, to train their people, to train the supervisory people in compliance with the law. That does not carry with it an inspection and does not carry with it a citation.

And lastly, we have a technical support group that can go in and assist mines that are having particularly problems in statistic areas. For example, in the area of noise or the area of guarding or the area of some chemical problem we would send in technical assistance people who do not issue citations, do not make inspections, but work on solving problems.

Mr. Owens. You mentioned new operation-training requirements are about to go into effect for sand and gravel mine operators. What steps has MSHA taken to provide compliance assistance to those operators?

Mr. McAteer. Thank you, Mr. Owens. That is one of the four regulations that Mr. Snyder refers to. It is Part 46 that came about, as I mentioned in our testimony, after a period of 19 years where we were prohibited from enforcing safety and health training for new miners in this particularly large section of the mining industry. That change, we have worked very hard with industry, with labor to make that a smooth transition. We have prepared education and training materials. We have a starter kit for any mine

operator to say here is how that training requirement operates and here are the steps that you need to take to ensure that you are in compliance with it. We have put information up on our website. We have had 350 training sessions throughout the country. Some 10,000 individuals have participated with us in the development of those sessions and in preparation for the rule going into effect.

So we have gone out of our way to ensure that those regulations don't create paperwork problems, don't create paperwork burdens on individuals, but in fact get to the point of where we need to get to, which is training individuals on safety and health, particularly new miners.

Mr. Snyder. Mr. Owens, that is true. There has been a lot of good work done. One of the concerns we have is the inconsistency out there. There are two things. First of all, some of our members have reported, for example, when it comes to compliance assistance, asking for in essence what is called a courtesy inspection. In some areas of the country it is only granted if it is a new facility that is installed, not on one that has been in place for a while.

Second of all, we have had some problems. For example, our members in Iowa, which I just submitted for testimony, are so upset with this huge change in citation writing out there, some are so upset that they have rescinded their willingness to participate with these training sessions that MSHA is putting on. I think that is a travesty. I think we ought to have the situation where we encourage that sort of thing.

There are examples that I gave you; for example, on a haul road that has been in existence for 20 years at a facility that has had no lost time accidents for over 20 years. Yet all of a sudden it is out of compliance and a citation was issued. So there is no question that there has been partnering on Part 46. We believe it needs to continue and we believe that we need to address the situations out in the field that in fact discourages the producers to work cooperatively with MSHA.

Mr. Owens. My time is up.

Mr. Ballenger. Go ahead.

Mr. Owens. This is my last question. This deals with the question of--the provisions have the effect of requiring MSHA to treat all mines equally, safe operators and unsafe operators. The Mine Act really has the authority to inspect problem mines more frequently than four or two times a year. Are you saying that MSHA does not exercise that authority? Or, similarly, are civil penalties related to the degree of hazard, the size of the operation and other criteria?

Mr. McAteer. Mr. Owens, thank you. The Mine Act provides for a minimum number of inspections for all mines, four for underground locations and two for surface locations. We can and do inspect problem mines more frequently than that, and we have the authority and responsibility to do that. In fact, mines where the record of accidents is bad or are having difficulties with gas or other types of individual problems, we can and do, or whether there is a request from the employee to do inspections.

Mr. Owens. I want to get to the question that implies that people who operate safe mines for a long period of time are treated the same as, say, unsafe mines. It would seem from that Act that that is not the case, because where there is a pattern of unsafe mines, you get more frequent inspections according to the law.

Mr. Watzman. Mr. Owens, if I might, one of the misnomers here or the misunderstandings is when talking about two and four inspections, it leads one to believe, or it implies that an inspector is only there 2 days a year or 4 days a year. In truth, there are many mines operating in this country where there is an inspector on the property every day that the mine is operated.

In my testimony, there is one mine in Kentucky, a small one-unit mine in west Kentucky. During the month of May, it operated 14 days, it had 33 inspection days, and its incident rates are well below the national average. Similarly, a large mine in West Virginia last month alone had 51 inspector days. 51 inspector days in one month alone. Yet these are examples of two mines whose incident rates are well below the national average.

We think that there should be a system in place that would enable MSHA, while recognizing that there needs to be inspections, there must be inspections, that is a part of the Act, that is a part that must remain of the Act, but there must be a system in place that allows for flexibility so that mines that are well below the national average don't have to be inspected with the same frequency as those that one would consider to be problematic mines.

Mr. Owens. Could we let Mr. Main comment on that before we close it out? Would you like to comment on that, Mr. Main?

Mr. Main. Yes. I think the truth of the matter is when you get to the fundamental underpinnings of the Mine Act, there is a core provision to conduct frequent inspections at coal mines four times a year underground, two times a year at the surface. Those may vary from one mine to another based on a variety of different conditions. I am not sure what the mine conditions were that Bruce talked about, but there are different situations that do dictate increased inspection activities at mines. It may be roof problems, it may be methane liberation problems, and it may be a number of things. Until you look at the actual facts, you couldn't figure that out.

But I know from a historical standpoint that you do need to do those twos and fours, to be there, to figure out if all the pieces are in place, and you do need to do more frequent inspection activities at mines that have significant problems. Without that, I think there will be more miners injured and killed in the mines in the country.

Mr. Ballenger. Ms. Woolsey.

Ms. Woolsey. You have pretty much covered most of what I am thinking because I don't know nearly enough about this. But I have two thoughts. One, just because things are going well doesn't mean that we don't need to keep doing it. So I think the success of the lower rate of death and injury says what we are doing is working. But I also realize that, and I think we all know the 80/20 rule, the first 80 percent of developing a product or

putting together a system and all that goes quite smoothly and 80 percent of the cost is in the last 20 percent and 80 percent of the challenge. I think that is where we are. So we are fine-tuning. Even though the Mining Act is 30 years old, or more than that now, we are fine-tuning, and what we are doing is more costly and probably is going to be very meaningful.

So I like the idea of what this panel is about, Mr. Chairman. It looks like everybody is trying to get to the same thing and working together, which leads me to a couple of questions. One, that I wasn't sure of with you, Mr. Ferrara. Are you suggesting that we mandate certain kinds of dust control systems or regulate that more closely than we already are? Would you like to see us mandate Airstream helmets?

Mr. Ferrara. What I am suggesting is, Ms. Woolsey, that the Mine Safety and Health Administration could do more to encourage the use of proven personal protective equipment.

Ms. Woolsey. How would they do that? How would they encourage it?

Mr. Ferrara. A good example is the most recent regulation that Mr. McAteer just referred to, a regulation dealing with underground coal mine respirable dust in which the use of Airstream helmets was approved in certain limited long wall mining contexts. The response of industry was this is a good step, it is sensible, this is proven, cost effective technology that protects miners, which is the bottom line. Let's expand it to other contexts where there are other problems with engineering controls.

I think what we are calling for is an encouragement and a flexibility in the use of this, which should become one of the three pillars of controlling exposure to harmful contaminants.

Ms. Woolsey. That, of course, Mr. Main, would have to come after we are sure that that product would work, because we don't want false securities.

Mr. Ferrara. Absolutely. It has to be proven, Congresswoman. If it is proven and if it is also shown to be comfortable in the kind of equipment that miners will use and are comfortable using, it should become one of the three reasonable approaches to addressing these problems in the interest of miner safety and health.

Ms. Woolsey. That is a question I am going to ask Mr. Main and you want to say something about this, I can tell. Let me ask you to respond to one more thing when you respond. Respond to "miners will use" if it is good, you may not want it to be something they have a choice. Go ahead.

Mr. Main. I will start off on that mark. Let me just say that on behalf of the Nation's miners, they appreciate Congress in 1969 setting a dust standard of which mine operators had to achieve to operate coal mines. What is not being talked about here is that standard being modified and the dust levels actually being increased in coal mines, and it is complicated, probably more than we have time to go through here today. Miners do not support this notion that has been expressed here and they have been on record saying that. What miners do support is the opportunity to use protective devices that do work but not as the standard in the mines as a backup.

There is a debate, like I say, that is going to go further than what we have time here today to get into, and a problem is that we do have, in my opinion, inadequate respiratory protection to really meet the needs of the miners today in the mines and we need to have respiratory protection that takes care of a broad range of exposures when it comes to dust, and we don't need to be replacing the standard in the Coal Mine Act that says that you will maintain the dust levels in the mine atmosphere at or below two milligrams with respirating protection because that gets you into a set of circumstances that I think deteriorates health and safety a long way. The miners do not support this contention that has been raised here and are on record several times.

The whole regulation scheme, and we talk about improvements, I think a sound person would say, okay, what is out there hurting, injuring and killing people that we need to address to continue lowering the death and injury rates? The kind of things that we have been talking about here, just I think briefly, is standards to do that.

There has been some discussion about diesel rules and concern that they are going to be heaped on the industry. I think the facts show that there has been this concern about 12 to 14 years about diesel emissions poisoning the air that miners breathe and we need to do something about that. Miners have demanded that for years. As a matter of fact, because things were not moving to set a rule to clean up this polluting dust or diesel in the workplace, our institution filed suit with the government to try to force that regulation to come to pass.

We are sitting here talking about getting a rule in place that should have been in there 10 years ago. Hazard communication standards, there are miners being sick in mines because of exposure to diesel or to chemicals and other agents in the workplace. What miners have asked for since the mid to late 1980s is the basic same standard that OSHA has. We don't have that. It is a situation I don't like that we are talking about these kinds of things happening now, but we should have done this 10 years ago, 12 years ago. I think that is a dilemma, that if we are going to fix those kinds of problems, we have to implement those kinds of standards.

As far as the dust standard, I think if the Committee has not been provided with it, there was almost a year long investigation conducted by the Louisville Courier Journal newspaper in Kentucky released in 1998 that disclosed some of the unsavory circumstances we have in the Nation's mines and exposures of miners to unhealthy coal dust, and some of the things that we have been talking about in these regulations unfortunately will not be fixed or were not fixed and those problems were some of the industry making a decision not to implement the kind of dust measures that are necessary.

For the record, according to NIOSH's latest study, over 18,240 coal miners have died from black lung disease in the latest 10-year period surveyed, which ended in 1996. It is a serious problem that we need to fix.

Thank you.

Ms. Woolsey. Mr. Chairman, do we have time for another answer?

Mr. Ballenger. Sure. Go ahead.

Mr. Watzman. Ms. Woolsey, let me just say briefly, I want the record to be clear, the industry has not nor are we asking to substitute personal protection worn by the miner for traditional engineering controls. The fact that we are experiencing today is that we are exhausting the technologic wherewithal of existing engineering controls. If our objective is to ultimately protect the miner, where we have exhausted those traditional controls, we believe we must be afforded the ability to use these nontraditional controls as an interim means while we further the development of the traditional controls.

That is what we talked about in the context of dust. That is what we have talked about in the context of noise. That is what we continue to promote with the agency. It is not a substitute for, it is not in lieu of, it is in addition to.

Ms. Woolsey. Let me see if I have this right. You see it as an improvement added on to what you are already doing?

Mr. Watzman. That is correct.

Ms. Woolsey. And not a substitute for it.

Mr. McAteer. If I might try to address very briefly your three or four points that have come up here. First of all, the dust standard and the use of Airstream helmets is, as Mr. Watzman points out, it is over and above the engineering controls. That is to say, it is only after we have exhausted engineering controls. We currently don't see any mine where we have to do that. But we would say that if there are circumstances where those engineering controls have failed to operate, then in fact we would look at that under very narrow circumstances.

Number two, we have addressed the diesel issue. In 1997 we put out a set of regulations dealing with the maintenance and we are working currently on a rule dealing with the standard or the level of particulate in the operation of mines.

Thirdly, because a law gets older, the older I get, I do not necessarily think that things need to be changed. I have learned over time that once you have something that works effectively, you might want to keep it. We are not anywhere near where we want to be in terms of the level of deaths and the level of injuries, but we are in the right direction and we think we need to move in that same direction, in that same capacity.

Ms. Woolsey. Thank you, Mr. Chairman.

Mr. Ballenger. I have one question I would like to throw at all of you, lets start with Mr. McAteer, because we are talking about abatement, anything like that. Mr. Ferrara in his testimony talks about the possibility of having a class of minor violations that would allow the opportunity for abatement first before citation is issued by the MSHA inspector. You and I talked about this and I told you how OSHA does allow this. I would like to hear your thoughts on the possibility of such an approach.

Mr. McAteer. We have tried to work with our inspection force, with our inspectors to focus on health and safety issues. During my tenure, we have tried to address safety and health issues and spend our time on those. Mr. Ferrara's suggestion here is something

that we would look at. I would offer to sit down with him or with anybody else to see what areas he thinks that are minor violations. Our concern would be that in the mining setting, sometimes minor violations lead to larger problems.

The Mine Act, distinct from the Occupational Safety and Health Act, is an act in which small violations are used to prevent larger problems. In the case of gas, in the case of roof falls, in the case of dust, our violations sort of blanket the area much like the parking ticket system does to deal with that. But it would be inconsistent to say that we shouldn't take a look at what his suggestion is and what the areas are that he would like to see.

Mr. Ballenger. In my opening statement I mentioned the open pit outfit down in North Carolina that got fined $110 because the garbage can lid was not on. It appears to me that something like that could very easily have an opportunity for abatement. Mr. Ferrara, would you like to add anything to that?

Mr. Ferrara. First of all, I welcome the willingness of the Assistant Secretary to sit down with the industry and talk about this. That is a very encouraging sign. I know we in industry would be happy to do that. What we are talking about here is offering

flexibility and relief to sites that are doing a good job in safety and health, that have good compliance records, and whose attention should be focused on major issues, if there are any. And also at the same time, Mr. Chairman, this kind of approach frees MSHA to use its resources to focus on what is major, not on what is trivial.

Mr. Snyder. I would add my concurrence to that. The problem with a minimum of two inspections, you have some facilities out there that obviously have the right mind-set and culture, which is sometimes demonstrated by decades of great safety records. We are not naive enough to think that everybody out there is as dedicated as they should be to that so why not take that resource and apply it somewhere where we can make an impact. There has been a great improvement. But the fact of life is over the last 15 years it has been flat.

I just last year lost my grandfather of 97. One of the things that he taught me was if you keep doing what you have always done, you are always going to get what you have always got. I think it is time to look at what we are doing and how can we get more buy-in and be more effective. No one here is recommending getting rid of the Mine Act. That is the last thing anybody has recommended. It is time to look at it and be more progressive maybe. You don't just change things to change things, but obviously we need improvement, we need to do something different and we ought to be focusing on what motivates the employee and the company to reach the goal that we have got, which is zero fatalities.

Mr. Ballenger. I would like to say to the panel I greatly appreciate your participation in this. Mr. Main, I don't think you would be averse to at least looking at the idea of somehow not citing a minor violation, just to see if there was some way that we could put it in a situation, I know OSHA does this because they have done it to me. It is available to straighten up your mess when your mess is not a danger.

Mr. Main. If I could just respond to that, one of the things we haven't talked about here today, which I think is part and parcel of improving the overall level of health and safety, is that we have different employers that we have that of course we have collective bargaining agreements with. Through that process, we have different joint committees, a Labor Health and Safety Committee and a Labor Training Committee. There is a lot of work we do through those processes to try and identify and solve problems that doesn't get discussed in this environment. I think that bringing those kinds of groups together to try to target and tackle some of these problems, I think it has made a great difference in our industry, in our minds.

Looking at it, and there are different mines that we target, that we say really the heck with MSHA or the Mine Act, let's go in here and try to figure out what it is here we need to do and have this mine operating the way we would like to have it. Whatever happens, happens. Where the true interest of that occurs, I can tell you, there have been some tremendous success stories in our industry. To me, that is where you get the most achievement, where you can get that kind of a mind-set, and really the enforcement activities of the agency is really meaningless because you have taken care of the problems. There are a lot of proactive things.

Mr. Ballenger. Let me just say that I appreciate that several of you have come up with suggestions, but, Mr. Main, if you have got suggestions along those lines that you have worked out amongst the mine workers, I would love to have a whole group of it put together. We obviously are not going to pass a bill this year. We are about through. But that wouldn't preclude the idea that we could put together the beginning of some sort of study and use the brains that we have got out there, the responsibility that you all have on a daily basis, put it to practical use. I am glad to hear Mr. McAteer at least say he would listen to the story.

Unless I am mistaken, the buzzer is going to go off in a second, anyhow, but I would just like to thank our witnesses for the valuable testimony and say that if you have any suggestions that you didn't bring up here, we would greatly appreciate it if you would add it to our knowledge and maybe we can put something together that would help you with your job and keep us from cutting your budget. We could just reduce a little bit of effort somewhere and then save the money. Again, we thank you all for being with us today.

[Whereupon, at 3:35 p.m., the Subcommittee was adjourned.]