[Senate Hearing 111-941]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 111-941
 
                  PUTTING SAFETY FIRST: STRENGTHENING 
                   ENFORCEMENT AND CREATING A CULTURE 
                    OF COMPLIANCE AT MINES AND OTHER 
                          DANGEROUS WORKPLACES 

=======================================================================

                                HEARING

                                 OF THE

          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   ON

 EXAMINING PUTTING SAFETY FIRST, FOCUSING ON STRENGTHENING ENFORCEMENT 
   AND CREATING A CULTURE OF COMPLIANCE AT MINES AND OTHER DANGEROUS 
                               WORKPLACES

                               __________

                             APRIL 27, 2010

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman
CHRISTOPHER J. DODD, Connecticut           MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland              JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico                  LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                   RICHARD BURR, North Carolina
JACK REED, Rhode Island                    JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont               JOHN McCAIN, Arizona
SHERROD BROWN, Ohio                        ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania         LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina               TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon                       PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
                                       

                                    
                      Daniel Smith, Staff Director
                  Pamela Smith, Deputy Staff Director
     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)

  

























                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        TUESDAY, APRIL 27, 2010

                                                                   Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...     3
    Prepared statement...........................................     5
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of 
  West Virginia..................................................     7
    Prepared statement...........................................     9
Main, Joseph A., Assistant Secretary of Labor for Mine Safety and 
  Health, Washington, DC.........................................    10
    Prepared statement...........................................    13
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio.......    25
Murray, Hon. Patty, a U.S. Senator from the State of Washington..    26
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    29
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................    31
    Prepared statement...........................................    32
Roberts, Cecil E., President, United Mine Workers, Triangle, VA..    35
    Prepared statement...........................................    37
Harris, Jeffrey, Mine Worker, Farley, WVA........................    41
    Prepared statement...........................................    43
Addington, Wes, Deputy Director, Appalachian Citizens' Law 
  Center, Whites-
  burg, KY.......................................................    44
    Prepared statement...........................................    45
Watzman, Bruce, Senior Vice President, Regulatory Affairs, 
  National Mining Association, Washington, DC....................    53
    Prepared statement...........................................    55
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    69
Michaels, David, PhD, MPH, Assistant Secretary of Labor for 
  Occupational Safety and Health, Washington, DC.................    73
    Prepared statement...........................................    75
Seminario, Peg, Director of Safety and Health, AFL-CIO, Bethesda, 
  MD.............................................................    89
    Prepared statement...........................................    91
Shaw, Holly, Philadelphia, PA....................................    99
    Prepared statement...........................................   102
Brandt, Michael, MS, MPH, DrPH, CIH, Board President (2010-2011), 
  American Industrial Hygiene Association, Los Alamos, NM........   105
    Prepared statement...........................................   107
Heflin, Kelli, Coordinator of Regulatory Compliance and Safety 
  Manager, Scott's Liquid Gold, Denver, CO.......................   110
    Prepared statement...........................................   113

                                 (iii)


                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Byrd.................................................   122
    Senator Webb.................................................   124
    Coalition for Workplace Safety (CWS).........................   125
    Refinery Safety at a Glance..................................   126
    National Stone, Sand & Gravel Association....................   128
    Response to questions of Senator Harkin by Bruce Watzman.....   131
    Response by David Michaels to questions of:
        Senator Harkin...........................................   132
        Senator Enzi.............................................   133
        Senator Burr.............................................   135
        Senator Isakson..........................................   135
    Response to questions of Senator Enzi by Michael Brandt......   137
    Lettters to:
        Senator Murray from Lynn D. Westfall, Chief Economist and 
          Senior Vice President for External Affairs, TESORO 
          Corp. (May 5, 2010)....................................    28
        Senator Harkin from Cecil Roberts, President, United Mine 
          Workers of America, UMWA (May 7, 2010).................   139


PUTTING SAFETY FIRST: STRENGTHENING ENFORCEMENT AND CREATING A CULTURE 
         OF COMPLIANCE AT MINES AND OTHER DANGEROUS WORKPLACES

                              ----------                              


                        TUESDAY, APRIL 27, 2010

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:07 p.m. in Room 
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
Chairman of the committee, presiding.
    Present: Senators Harkin, Murray, Brown, Casey, Franken, 
Bennet, Enzi, and Isakson.
    Also Present: Senator Rockefeller.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    The topic of today's hearing couldn't be more timely or 
more important, in the wake of the West Virginia coal mining 
disaster that killed 29 miners; the refinery explosion in 
Anacortes, WA, where seven workers died; the disaster that 
killed six people at a Connecticut natural gas power plant; 
and, just last week, a blast, on the Louisiana oil rig, off the 
Gulf of Mexico, that most likely killed 11 workers. It is time 
to focus renewed attention on the safety of our fellow workers. 
This string of recent worker deaths and injuries is a grim 
reminder that too many employers cut corners on safety, too 
many workers pay the price with their lives.
    As the son of a coal miner, I feel these losses very deeply 
and on a very personal level. My thoughts and prayers are with 
the families and coworkers of those killed, those injured or 
missing because of these awful tragedies. While there is very 
little comfort we can offer during this difficult time, we can 
promise that their loved ones will not have died in vain. We 
will learn from these tragedies so that no one has to go to 
work in fear that they won't come home at the end of the shift.
    Certainly, the history of the American workplace suggests 
that, when we focus our efforts, we can do great things to 
improve safety and health. Since the passage of the Coal Mine 
Health and Safety Act and the Occupational Safety and Health 
Act, four decades ago, countless lives have been saved, and the 
number of workplace accidents has been dramatically reduced. 
But, we still have a long way to go. Every year, tens of 
thousands of American workers are killed or permanently 
disabled by workplace injuries and occupational disease.
    In 2008, the latest available data, 5,214 workers were 
killed by traumatic injuries. An estimated 50,000 to 60,000 
died from occupational diseases. Too many workers remain in 
harm's way, and it's long past time to strengthen the critical 
laws that help keep Americans safe on the job.
    One area in our health and safety laws that needs 
particular attention is enforcement. While the vast majority of 
employers are responsible and do all they can to protect their 
workers, there is, unfortunately, a population of employers 
that prioritize profits over safety and knowingly and 
repeatedly violate the law.
    The deadly blast at the Upper Big Branch Coal Mine, earlier 
this month, was a tragic example of the dangers of this 
approach. This facility had a record of numerous and serious 
safety violations, including 515 violations, last year alone--
515, last year alone. That's 76 percent more than the national 
average. So far this year, it has already accumulated 124 
additional violations. Even more troubling, 48, 48 of these 
accrued citations were repeated, quote, ``significant and 
substantial violations of safety standards that the mine 
operator knew, or at least should have known, presented a 
serious threat to worker safety.''
    The problem of repeat offenders is certainly not limited to 
the world of mining. Flagrant abuse of the law is common in 
many of our most dangerous industries. Unfortunately, the 
penalties for breaking the law are often so minimal that 
employers can dismiss them as just a minor cost of doing 
business.
    Currently, serious violations, where there is a substantial 
probability of death or serious physical harm, are subject to a 
maximum civil penalty of $7,000 under OSHA. For comparison, 
that's $18,000 less than the maximum fine for a class-1 civil 
environmental violation under the Clean Air Act.
    Criminal penalties under OSHA are also weak. If a worker 
dies because of the willful act of his or her employer, that 
employer faces a maximum conviction for a misdemeanor and up to 
6 months in jail. In contrast, that same employer willfully 
violating the Clean Water Act could be fined up to $250,000 and 
spend up to 15 years in prison. In other words--this is my 
point--our laws do more to protect the environment than it does 
to protect our workers.
    In addition to putting real teeth in our safety and health 
laws, we have to make sure that our Federal agencies have the 
enforcement tools they need to identify mines and nonmine 
workplaces with the worst safety records, and hold these repeat 
offenders accountable. We have provisions in our laws that are 
supposed to target repeat offenders, but they're either 
rendered ineffective, through mistaken interpretation, or 
undermined by employers who will go to great lengths to game 
the system.
    There's no question that a mine, like the Upper Big Branch, 
should have been receiving special scrutiny under the Pattern 
of Violation provisions of our mine safety laws. This is an 
operator that, even in the wake of the worst mining disaster in 
recent history, continues to use such unsafe practices that, 
just today, MSHA ordered the withdrawal of miners from three 
different Massey Mines, due to hazardous conditions.
    As bad as UBB's record was, the law has been interpreted to 
allow them to continue operating without Pattern of Violation 
treatment, as long as they can reduce their violations by more 
than one-third in response to a written warning. With a record 
as spotty as UBB's, a partial reduction in their numerous 
citations is hardly a sign of a safe mine, and should not be a 
``get-out-of-jail-free card'' to escape the intent of the law.
    It's not just historically weak interpretations of the law 
that are to blame; employers also find creative ways to ensure 
that the system cannot work as Congress intended. In the mining 
industry, for example, some chronic violators have avoided 
being placed on Pattern of Violation status, and avoided paying 
legitimate penalties, by contesting nearly every citation that 
is assessed against them. Because MSHA uses only final orders 
to establish a pattern of violations, and the average contested 
citation takes over a year to adjudicate, since there are now 
16,000 cases backlogged at the Federal Mine Safety and Health 
Review Commission, repeat offenders are able to evade Pattern 
of Violation status by contesting large numbers of violations.
    At the Upper Big Branch Coal Mine, for example, Massey 
contested 97 percent of its Significant and Substantial 
violations, in 2007. A similar problem is seen in nonmine 
workplaces. While the backlog of cases is not nearly as great 
at the Occupational Safety and Health Review Commission, under 
OSHA's weaker law, the employers don't even have to fix a known 
hazard until the entire review process is completed, years 
later. I think this is unacceptable, and it's got to change.
    So, we sit here today, on the eve of Workers Memorial Day--
that's tomorrow April 28--a day that is set aside to remember 
the thousands of men and women who die on the job in our 
country every year. The best way we can honor their memory is 
to renew our efforts to protect workers' lives and improve 
safety and health in our country's coal mines and other 
dangerous workplaces.
    With that, I would yield to my friend Senator Isakson.
    Senator Isakson. Well, thank you, Chairman Harkin.
    First of all, I'd ask unanimous consent that the full 
statement of Senator Enzi, the ranking member of the committee, 
be placed in the record.

                      Statement of Senator Isakson

    Senator Isakson. A little over 3 years ago, just after 
Christmas, I got in an airplane with Senator Ted Kennedy, 
Senator Jay Rockefeller, and Senator Mike Enzi, and traveled to 
the Sago Mine disaster in West Virginia. I got to see, 
firsthand, the tragedy of the deaths of miners in an accident; 
got to meet, firsthand, with the families of those West 
Virginians that had lost their loved ones; still have the 
picture of Junior Hemmer that was given to me by his daughter. 
I attended the signing at the old executive office building, of 
the MINER Act, which Senator Rockefeller and myself, Senator 
Enzi and Senator Kennedy were proud to be a part of.
    I take this hearing probably more seriously than I take 
just about any hearing, because when you look in the face of 
someone who has lost a loved one to a tragedy, no matter what 
that tragedy is, you really understand the full impact of the 
loss of a human life. None of us on this committee want to do 
anything other than to ensure the laws that we have work in the 
interest of the safety of miners, and make sure that we 
approach these with very serious and studied opinions.
    In particular, I was very pleased, at that time, to work in 
a deliberate way to make sure we found out the determination of 
the cause before we ran off halfcocked, thinking, by adding a 
fine or adding a statute, we'd improve the situation.
    I think I'm correct, Mr. Main--and you can correct me if 
I'm wrong--but on the day of the explosion that we're talking 
about today, there were MSHA inspectors in the mine--they were 
just in another part of the mine--which shows you that, even on 
the day of the problem, if the inspectors that are there to 
prevent the problem were there, then there must be something 
either they need to do or we need to do.
    However, I want to point out, Senator Rockefeller--and I'm 
referring to him, because he's sitting here and he can correct 
me if I'm wrong--went to extensive effort, in the MINER Act, to 
try and target those things we knew we could do to, hopefully, 
meet what every person's goal in this committee is, and that 
is, ensure this never happens again. But, it's happened again. 
And that's a wake-up call for all of us, everybody at MSHA, 
everybody at OSHA, and everybody in the U.S. Senate and the 
Congress, to act on.
    We should recognize, too, that enforcement of existing law 
is as important as creating a new law that you think's going to 
get at the problem if you're not using the existing law. For 
example, I want to read a few things that MSHA has the 
authority to do now:

          ''MSHA may, under section 104(b), order an immediate 
        withdrawal of any mine, from any part of the mine, or 
        from the entire mine when a hazard that cannot be 
        immediately abated is endangering miners.''

    Now, I'm not about to say that the inspectors there that 
day didn't know there was something getting ready to happen, 
but they obviously didn't or they'd have had the power to close 
that mine.

          ``MSHA can seek a temporary or permanent injunctive 
        relief to close a mine, or take any other appropriate 
        action, whenever it finds a mine operator engaged in 
        behavior that constitutes a continuing hazard to 
        miners, under Section 818(a) of the MINER Act. If MSHA 
        determines that there is a consistent pattern of 
        significant and substantial violations, they may issue 
        a Pattern of Violation letter, under 104(e), for which 
        violations found after issuance of a letter, MSHA will 
        issue an order withdrawing miners from the affected 
        area.''

And,

          ``MSHA may, under the MINER Act, find flagrant 
        violations, whereby there has been a reckless or 
        repeated failure to make reasonable efforts to 
        eliminate a known violation of a mandatory health or 
        safety standard that substantially and approximately 
        caused, or reasonably could have been expected to cause 
        death or a serious bodily injury, and that violation 
        can cover a fine up to $225,000.''

    My point is not to say we've done enough, but it is to say 
we've given a lot of authority to MSHA already. The enforcement 
of that authority and the use of that authority by MSHA is 
critical if the U.S. Senate, and all of us in it, reach the 
goal, as was stated at the ceremony the President spoke at the 
other night, to see to it that this never happens again. We 
wanted to do that in the MINER Act, we want to do that today, 
but there--it's all hands on deck. It's everybody we can find 
that can do anything to help us find the causes, so we can 
prohibit those causes. It's finding out all the information of 
who did what when. It's taking the authorities that exist and 
making sure they were exercised before we blame it on some--or 
you pass some new authority just to correct something that 
wasn't used anyway.
    Whatever the case, the wives and loved ones of the 29 
miners of West Virginia lost in the most recent incident are at 
the top of our mind and at the bottom of our hearts.
    I look forward to working with the Chairman, Senator 
Rockefeller, and Senator Byrd. I think Congressman Rahall 
deserves a tremendous amount of credit for his--I saw more of 
him on television, and he was there at the right hand of the 
families, the inspectors, and the government officials, seeing 
to it that everything that could be done was done. I commend 
him for doing that; and Senator Rockefeller and Senator Byrd, 
for their untiring support of efforts to improve mine safety, 
which is so critical to the families, but it's critical to the 
great State of West Virginia.
    With that, I yield back my time.
    [The prepared statement of Senator Isakson follows:]

                 Prepared Statement of Senator Isakson

    I am pleased to welcome Mr. Joseph Main and all of our 
witnesses to today's hearing.
    It has now been 3 years since Senators Kennedy, Enzi and I 
joined Senator Rockefeller on a visit to Upshur County, West 
Virginia to meet with the devoted families of the miners who 
perished in the Sago Mine tragedy. It was, to say the very 
least, one of the most moving experiences of my life.
    Sadly, we find ourselves here again, this time after the 
tragedy at Upper Big Branch mine.
    After Sago, many of us in this room delved into the safety 
challenges and how the industry and the Federal and State 
regulators were meeting them. We consulted professional safety 
experts inside and outside the mining community--including 
academicians and technology experts. The result was the MINER 
Act that Congress passed in the summer of 2006.
    At the same time as Congress was responding to these 
tragedies, so was the entire mining industry. Complacency about 
safety was no longer acceptable for 21st century mining. 
Employees, employers, and MSHA staff set out to put the 
industry on course to drive mine accidents down to zero.
    After Sago, more attention was focus on areas of the mine 
where incidents were more likely to occur. Mines better managed 
risk by designing programs specifically designed to raise 
awareness of safety underground. Almost a billion dollars has 
been invested in communications technologies, increased oxygen 
supplies for underground survival, and enhanced rescue 
capabilities.
    Despite these efforts, we lost another 29 brave miners at 
Upper Big Branch earlier this month. I will continue to pray 
for the families as we seek answers to their questions.
    One we have heard asked is whether this mine was known to 
be operating in an unsafe manner and, if so, why MSHA allowed 
that? There is no doubt that MSHA has extensive legal authority 
under current law to stop unsafe mining when it finds it.
    MSHA may, under section 104(b), order an immediate 
withdrawal of miners from any part of the mine or the entirety 
of the mine when a hazard that cannot be immediately abated is 
endangering miners. This includes closure of the area, 
equipment, or practice that is alleged to be in violation of 
the standards.
    MSHA may seek temporary or permanent injunctive relief to 
close a mine or take any other appropriate action whenever it 
finds a mine operator engaged in behavior that constitutes a 
continuing hazard to miners, under Section 818(a).
    If MSHA deems a mine operator's conduct to be reckless 
disregard, intentional misconduct, indifference, or a serious 
lack of reasonable care, the agency may, under Section 104(d), 
issue an unwarrantable failure citation. Such violations carry 
a maximum civil penalty of $70,000.
    If MSHA determines that there is a consistent pattern of 
significant and substantial violations, they may issue a 
pattern of violations letter under Section 104(e). For each 
significant violation found after issuance of the letter, MSHA 
will issue an order withdrawing miners from the affected area.
    MSHA may, under the MINER Act, find ``flagrant'' 
violations, whereby there has been a ``reckless or repeated 
failure to make reasonable efforts to eliminate a known 
violation of a mandatory health or safety standard that 
substantially and proximately caused, or reasonably could have 
been expected to cause, death or serious bodily injury.'' Such 
violations carry a maximum civil penalty of $220,000.
    Under the 1977 Mine Act, MSHA can bring criminal charge 
against agents, officers and directors who knowingly authorize 
order or carry out violations of mandatory standards. 
Similarly, MSHA may impose criminal penalties on any person who 
knowingly falsifies a record or document required to be 
maintained.
    I know some are now asking that we increase MSHA's 
authority. Before we even consider such an action, I think we 
first have to determine why MSHA did not use all the authority 
it already has with regard to Upper Big Branch. Despite issuing 
over 60 orders to withdraw miners during the last 18 months, 
MSHA did not seek injunctive relief, did not find a pattern of 
violations, took no action to eliminate what it now calls a 
``loophole'' in its own pattern violation rules, and did not 
even seek to classify any of the multiple violations that it 
cited as ``flagrant.''
    In closing, every time we discuss mine safety, I cannot 
help but remember George ``Junior'' Hamner. Junior Hamner died 
in the disaster at Sago Mine. His loving daughter gave me a 
picture of him and asked that in my capacity as the Ranking 
Member of the Employment and Workplace Safety Subcommittee, I 
would work to see that future generations of miners would not 
suffer as her father did. I promised her I would.
    It is in light of that promise that I will continue working 
with the industry, the Obama administration, and my colleagues 
on both sides of the aisle to ensure that American mining is 
unquestionably the safest mining in the world.
    The Chairman. Thank you very much.
    I ask the indulgence of the committee, since this tragedy 
took place in Senator Rockefeller's State, I've asked Senator 
Rockefeller to join us here. And I'd like to recognize him for 
a brief statement.
    Senator Rockefeller.

                    Statement of Senator Rockefeller

    Senator Rockefeller. Thank you, Mr. Chairman.
    I enormously appreciate the attitude of yourself and your 
colleagues in allowing me to be here, as indeed you did after 
the Sago Mine disaster, and we wrote legislation.
    Congressman Rahall being in the audience is important.
    I just wish that everybody, other than those who were 
there, who are watching in the audience and in the other 
overflow room, could have been at the ceremony--the Miners 
Memorial on Sunday, which was one of the most powerful and 
gripping experiences that I've ever had.
    Workplace safety is important in all industries, but it's 
absolutely critical in those industries where the risks of 
injury are great, and the consequences of poor safety are 
severe. Sadly, we've been there before, after the tragedy of 
Sago and Aracoma. I had the honor, as I indicated, of joining 
this committee then. I would like to be made a permanent 
member, but I'm not going to push the envelope.
    [Laughter.]
    It meant a lot to the families, there at Sago, that 
Senators Kennedy and I'll just say, in particular, Senator 
Isakson and Senator Enzi were there, because they had not been 
to West Virginia before; they had not been to a mine disaster 
before; and they moved in with those families and talked with 
them. For quite a long period they were a part and parcel, and 
then became a part and parcel of the legislation that we 
passed. It would not have passed if it had not been for Senator 
Isakson and Senator Enzi, and their perseverance. It was as if 
they had became West Virginians.
    We vowed to improve safety in the mines, and we passed the 
MINERs Act, which we thought was pretty good. We were reacting 
to what we had seen at Aracoma, not at Aracoma, at Sago. It was 
a good piece of legislation that did improve safety, 
particularly with respect to response teams and--actually, the 
only piece of Federal legislation in the previous 30 years, 
which says something, probably not very good. Frankly, that 
legislation was not enough.
    First and foremost, safety is about a company doing the 
right thing to develop a true culture of safety. Easily said, 
hard to do, something that I'll want to be talking with Mr. 
Main about.
    We need to find out what is working in safe mines, where 
people are doing the same thing. They may be larger, they may 
be smaller. Because these are doing the right thing every day, 
and we cannot forget about what it is about them that allows 
them to do the same act of mining, in the same danger, but to 
do it safely. What do they do that others don't?
    On the other hand, we need to know what is not working, 
likewise, in more dangerous mines. Why do injuries and deaths 
occur there, whereas they don't in mines that are watched over 
more carefully? Because the mine operators who show no regard 
for safety should not be allowed to gain competitive advantage, 
because some are being very careful and very specific in the 
way they try to do safety in the right ways, and others aren't. 
The sad fact is, in the coal fields, which are remote, far 
distant--in this case, Senator Isakson, even more distant than 
Sago. I mean, way, way back in the hills of southern West 
Virginia.
    Safety is also about State and Federal Government stepping 
in; I think, toughening up our laws, where appropriate. I don't 
disagree with what you said, Senator Isakson, but I think there 
is room for improvement. We sort of react to the latest mine 
disaster. Is that a good way to do safety legislation? I don't 
think it probably is, but it's a heck of a motivator, and it 
makes us do things that we might not otherwise have done. So, 
we need to grab the spirit of this moment, the sadness of this 
moment, and do our duty.
    We will learn a lot from MSHA's investigation into this 
tragedy. That investigation will take 6, 8, 10 months. I'm not 
sure legislation can wait for that. In point of fact, I'm quite 
sure it can't. So, therein also lies an immediate problem. I 
don't think it's necessarily going to be a problem, because I 
think many of our problems in our system are already quite 
clear. I would just name four, Mr. Chairman, and then I'll be 
finished, for the moment.
    First, we know that MSHA can issue immediate withdrawal 
orders for imminent dangerous violations, but we need to find 
out if MSHA is doing all it can do to find them, and if it is 
using its authority to the fullest extent.
    Second, currently the Mine Safety and Health Review 
Commission has a backlog of more than 16,000 cases, consisting 
of 82,000 violations. That's an awful lot of violations and 
appeals and all kinds of other things. I think that has to 
change. I'm certain that has to change. We must help do that, 
either by self-reforming of MSHA, or, more likely, doing it in 
legislation so that MSHA really has no choice but to do it; and 
then budget help has to follow that.
    We need to put an end to the loopholes in the law that 
allow some mines to put profit over safety. We all know what 
that is. It's the using of the appeal process, because that 
way, they can go ahead and mine; and, since they're appealing, 
they don't have to pay a fine, they can go ahead and do what 
they're doing. That doesn't seem right at all.
    Third, we also need to improve MSHA's enforcement efforts, 
themselves, and determine what new authorities, as an agency, 
that MSHA may need. MSHA must not be shy about this. It is a 
culture unto itself. It's a culture which is a different one 
now, I think, than the last time we did legislation. I'm 
talking about such things as subpoena power or, a little bit 
more farfetched but not at all out of the ring, enhanced 
criminal penalties.
    And fourth, there's also more work to do to protect whistle 
blowers. I believe in whistle blowers. I don't believe in 
irresponsible whistle blowers, who've just had a really bad 
week with their wife, and they're just furious and want to 
cause trouble. There's nothing in me that says that we can't 
find a way to separate those out and to take, not just the 1-
800-number phone calls, which are more removed, but make the 
whistleblower system work.
    Mr. Chairman, I thank you for letting me come here. I look 
forward to this.

               Prepared Statement of Senator Rockefeller

    I want to thank Chairman Harkin, Ranking Member Enzi and 
all my colleagues on the committee for allowing me to 
participate in this timely hearing the day before Workers 
Memorial Day.
    Workplace safety is important in all industries--but it is 
absolutely critical in those industries where the risks of 
injury are great and the consequences of poor safety are 
severe.
    Sadly, we have been here before--after the tragedies of 
Sago and Aracoma. I had the honor of joining the committee 
then. And it meant a lot to the families of the miners lost in 
those tragedies when several members of this committee--
Senators Enzi, Kennedy, and Isakson--came to West Virginia at 
the time to see the essence of my State up close.
    Following those tragic events, we vowed to improve safety 
in the mines, and we came together to pass the bipartisan MINER 
Act--a good piece of legislation that did improve safety and 
rescue response--the most significant Federal mine safety 
legislation since 1977.
    But it is clear that we must do more. We must honor the 
sacrifice of the 29 brave miners killed at the Upper Big Branch 
mine by learning from this terrible tragedy and making mining 
safer.
    First and foremost, safety is about a company doing the 
right thing to develop a true culture of safety. We need to 
find out what is working in safe mines, because there are 
companies doing the right thing every day and we cannot forget 
that.
    And we need to know what is not working in dangerous mines. 
The mine operators who show no regard for safety should not be 
allowed to gain a competitive advantage by risking the lives of 
their employees.
    Safety is also about State and Federal Governments stepping 
in and toughening up our laws--and providing the resources and 
the people to enforce those laws. We will learn a lot from the 
Mine Safety and Health Administration's investigation into the 
tragedy, but many problems in our system are already quite 
clear.
    First, we know that MSHA can issue immediate withdrawal 
orders for imminently dangerous violations. But we need to find 
out if MSHA is doing all it can to find them and if it is using 
its authority to the fullest extent.
    Second, the Federal Mine Safety and Health Review 
Commission currently has a backlog of more than 16,000 cases 
consisting of 82,000 violations. That must change. We must 
reduce the appeals backlog as soon as possible and put an end 
to the loopholes in the law that allow some mines to put 
profits over safety.
    Third, we need to improve MSHA's enforcement efforts and 
determine what new authorities the agency may need, such as 
subpoena power or enhanced criminal penalties.
    And fourth, there is more work to do to protect 
whistleblowers. No one should fear losing their job because 
they are trying to make the workplace safer.
    We are all committed. The President is committed. So, let's 
get down to business. Mr. Chairman, thank you for having me 
here. I am grateful and I look forward to working with you on 
this important issue going forward.
    The Chairman. Thank you very much, Senator Rockefeller. 
Again, my personal thanks to you for your great leadership in 
so many areas, but in this area, in which I also care so much 
about, along with you and Senator Isakson and others.
    It's been mentioned that Congressman Nick Rahall is here in 
the audience, who represents the Third District of West 
Virginia, for 34 years. Born and raised there. That's where the 
Upper Big Branch disaster occurred. I served in the House for 
several years with Mr. Rahall, as did you, right, Senator 
Isakson?
    Again, you're welcome here, Congressman Rahall. If you'd 
like to join us up on the podium, however you feel. Welcome. 
Thank you, Nick.
    Well, let me just say to everyone, their statements will be 
made a part of the record in their entirety. I'm going to ask 
each of our witnesses if they could sum up in about 5 minutes 
or so. We have, if I'm not mistaken, four different panels.
    We'll start, first, with Mr. Joe Main, who is Assistant 
Secretary of Labor for Mine Safety and Health, for the U.S. 
Department of Labor.
    Again, your statement will be made a part of the record in 
its entirety.
    Mr. Main, if you could sum up in 5 minutes or so, I'd sure 
appreciate it.

 STATEMENT OF JOSEPH A. MAIN, ASSISTANT SECRETARY OF LABOR FOR 
             MINE SAFETY AND HEALTH, WASHINGTON, DC

    Mr. Main. Thank you, Mr. Chairman.
    Chairman Harkin, Ranking Member Enzi, members of the 
committee, thank you for inviting us here today. I do wish it 
was under far different circumstances.
    I do want to pass on some words of appreciation to Senator 
Rockefeller, Congressman Rahall, the staff of Senator Byrd and 
others who spent a lot of time with us at the Upper Big Branch 
Mine during some pretty difficult days, a couple weeks ago, and 
shared with us the difficulties that is faced when you have a 
mine emergency like this. I mean, several times a day we'd have 
to call the families together to give them bad news or just 
news--of hope--that is never good news. That takes a toll on a 
family that, unless you're there living through that, one can 
never appreciate and understand. I think that's what drives me, 
in the job that I have, to end that kind of grief in the coal 
fields of this country. I do appreciate all the support and 
help that we had from folks here, during those difficult days.
    Let me express my deepest condolences, too, to the families 
and friends and coworkers of the 29 miners who perished in the 
Upper Big Branch Mine, and offer my wishes for a speedy 
recovery to the surviving miner, who remains under medical 
care.
    We're also very thankful that the other injured miner has 
been released from the hospital. Our prayers are with them all.
    As the President said, ``We owe them more than prayers. We 
owe them action. We owe them accountability.'' That ought to 
be--they ought to know that, behind them, there's a company 
that's doing what it takes to protect them, and a government 
that is looking out for their safety.
    I want to remind the committee that we do not just face a 
safety crisis in this country, just on the mining side; it's 
one of workplace safety. Fourteen workers lose their lives 
every day in this country by just doing their jobs.
    Fatalities in coal mines are preventable. Explosions in 
coal mines are preventable. The tragedy at Upper Big Branch 
Mine did not have to happen.
    On April 5, 2010, at 3:02 p.m., an explosion occurred at 
the Upper Big Branch Mine, and it took the lives of 29 miners. 
Initial reports indicate that the explosion was massive.
    From 2007 to today, MSHA has steadily increased its 
enforcement presence at the Upper Big Branch Mine. In 2007, 
MSHA inspectors were onsite at the Upper Big Branch Mine a 
total of 934 hours. That increased to 1,854 hours in 2009, 
double the amount of time over those 2 years. During those 
inspections, MSHA found and issued an increasing number of 
violations, citations, and orders; including significant and 
substantial violations.
    In December 2007, MSHA informed the mine that it could be 
placed into Pattern of Violation status; however, the mine 
operator was able to avoid the status by reducing its level of 
serious violations. The mine again had a significant spike in 
safety violations in 2009, where MSHA issued 515 violations--
citations and orders. In 2009, MSHA issued 48 withdrawal orders 
for repeated violations, and that was 19 times the national 
rate.
    Just as troubling, three other massive mines had more 
citations. The Department of Labor is in litigation to 
establish that one of these, the Knox Creek, Tiller No. 1 mine, 
is a pattern violator. If MSHA prevails, Knox Creek will be the 
first mine placed on a Pattern of Violations status since the 
passage of the 1977 MINE Act.
    In the wake of this tragedy we know that weaknesses, even 
in our strongest tools, are clear. Most important, changes are 
needed. Changes are needed for mine operators to take more 
responsibility for the high number of violations being cited at 
mines across the country, increasing mine operator inspection 
requirements, and reforming the Pattern of Violations program.
    MSHA's Pattern of Violation program should be our most 
effective tool for holding bad actors accountable, but the 
policies, that this Administration inherited, make it easy for 
operators, like Massey, to avoid the Pattern of Violation 
status. Massey used a popular tactic to avoid Pattern--or 
potential Pattern of Violation status; contesting violations 
blocked MSHA from using the violations to put the mine in a 
potential Pattern of Violation status for over 500 days. When 
you figure this is a 2-year history that's used under the 
process, another 500 days, you're looking at 3 years to get to 
a start of the problem.
    The current system also allows operators to avoid Pattern 
of Violation status by reducing its S&S violations by more than 
30 percent in 90 days, which is the formula that's used. The 
Upper Big Branch Mine did this in 2007 and avoided the pattern 
status.
    In terms of reform, there are steps that we are taking. Our 
regulatory agenda focused on regulations that require companies 
to take responsibility to find and fix problems before they're 
discovered. What we call the ``plan, prevent, protect'' system. 
Secretary Solis is committed to changing the ``catch-me-if-you-
can'' approach everywhere it exists. Some of those regulations 
that we'll be talking about was announced in the Federal 
Register yesterday.
    We are soliciting information on the use of comprehensive 
safety management programs, and plan to propose a rule to re-
institute the preshift examinations for violations of mandatory 
safety and health standards, that was removed about 1992, which 
is currently contained from the 1969 Coal Mine Health and 
Safety Act.
    New regulations to simplify the Pattern of Violations 
criteria are also planned. In addition, we're considering 
greater use of other tools to stop scofflaw mine operators 
sooner, such as the MINE Act's existing provision to seek 
permanent or temporary injunctive relief, which has been talked 
about today.
    We need budgetary, regulatory, and legislative action to 
solve the backlog problem. While the backlog at the Federal 
Mine Safety and Health Review Commission adversely impacts the 
use of MSHA's current Pattern of Violation process, more 
fundamentally it has severely reduced the deterrent value of 
its penalties. There are more than 16,000 cases pending before 
the Commission. We should build on the Administration's 
proposed 27-percent increase in the Commission's budget, to 
provide sufficient personnel to quickly resolve disputes.
    In testimony before the U.S. House of Representatives on 
February 23, I outlined specific measures to address the 
backlog problem. They included simplifying the citation/penalty 
determination process; improving the conferencing system; 
corporate-wide holistic settlements; and operator 
implementation of meaningful health and safety programs.
    MSHA and Federal prosecutors also need more tools to 
investigate and punish wrongdoing. Unlike other agencies that 
enforce Federal law, MSHA lacks the authority to subpoena 
testimony and documents as part of its investigative process. 
MSHA's criminal penalties must be enhanced so that the threat 
of jail is real for the worst offenders. Knowing violations of 
key standard laws--of key safety laws should be felonies and 
not misdemeanors.
    Most importantly, we must empower the miners. Miners must 
be able to raise valid safety concerns without fear of 
retaliation.
    We look forward to working with the committee on 
strengthening whistleblower protections for miners. Due to 
limits of MSHA's current authority, I think it is necessary to 
examine the current statutes, regulations, and policies, and 
ask, ``What more can we do to ensure the health and safety of 
America's miners?''
    There are miners--mine operators every day that run safe 
operations and safe mines. Miners go to work and come back 
every day unharmed, free of illness, free of death. That is the 
standard we need to put in place across this country. Miners 
and other workers have the right to come home safely after 
every shift.
    I look forward to continue to work with this committee and 
would be happy to answer any questions that you have.
    I thank you again, Mr. Chairman, for calling this important 
hearing.
    Thank you.
    [The prepared statement of Mr. Main follows:]
                  Prepared Statement of Joseph A. Main
    Chairman Harkin, Ranking Member Enzi, members of the committee, I 
want to thank you for inviting us here today. I wish I were here under 
different circumstances.
    Let me first express my deepest condolences to the families, 
friends and co-workers of the 29 miners who perished in the Upper Big 
Branch Mine on April 5, 2010, and offer my wishes for a speedy recovery 
to the surviving miner who remains under medical care. Our prayers are 
with all of them.
    As the President said,

          ``We owe them more than prayers. We owe them action. We owe 
        them accountability. We owe them an assurance that when they go 
        to work every day, when they enter that dark mine, they are not 
        alone. They ought to know that behind them there is a company 
        that's doing what it takes to protect them, and a government 
        that is looking out for their safety.''

    Every worker has a right to a safe and healthy workplace. Every 
worker has a right to go home at the end of his or her shift and to do 
so without a workplace injury or illness. Workplace fatalities--even in 
an industry like underground coal mining--are preventable. No one 
should die for a paycheck.
    I also want to remind the committee that we do not just face a mine 
safety crisis in this country; we face a workplace safety crisis. 
Fourteen workers lose their lives every day in this country, just doing 
their jobs. Dr. David Michaels, Assistant Secretary of Labor for the 
Occupational Safety and Health Administration, will be testifying later 
this afternoon and will describe important measures that need to be 
taken to ensure the safety of all American workers.
    Throughout the media coverage of the Upper Big Branch tragedy, many 
commentators have implied that we should expect and accept a certain 
number of fatalities every year in coal mining. The Department of Labor 
and the Mine Safety and Health Administration (MSHA) could not disagree 
more strongly. Fatalities in coal mines are preventable. Explosions in 
coal mines are preventable. The tragedy at the Upper Big Branch mine 
did not have to happen. That is why I am so grateful to be here with 
you to discuss how we can make President Obama's promise a reality.
                  events at the upper big branch mine
    First, I would like to share with you a short summary of what 
happened on April 5, 2010 at Performance Coal Company's Upper Big 
Branch Mine-South (UBB) in Montcoal, WV. The mine operator of UBB is 
Massey Energy Company.
    We know there was a catastrophic explosion that triggered carbon 
monoxide alarms at the mine at 3:02 p.m., indicating this was the 
likely time of the explosion that killed 29 miners and put two 
survivors in the hospital. Initial reports indicate that the explosion 
was massive.
    The accident investigation team will evaluate all aspects of this 
accident and identify the cause of the disaster. Based upon initial 
reports from the mine rescue teams, the most extensive damage appears 
to have occurred in and near active working sections of the mine. The 
rescue teams reported mining equipment severely damaged in these areas. 
Every miner working in this area was believed to have been killed 
instantly.
    While the cause of this specific explosion is still being 
determined, most mine explosions are caused by the combustion of 
accumulations of methane, which may combine with combustible coal dust 
mixed with air. Historically, blasts of this magnitude have involved 
propagation from coal dust.
    The explosion at the Upper Big Branch Mine occurred at or around 
the time of a shift change. It killed miners in and around two working 
sections of the mine. It also killed and injured miners who we believe 
were traveling from the working sections at the end of their shift.
    At approximately 3:27 p.m., MSHA records indicate the company 
alerted MSHA and the West Virginia Department of Miners' Health, Safety 
and Training of the explosion. Immediately, over 20 mine emergency 
rescue teams from Massey, other coal companies in the region, the 
State, and MSHA responded to the disaster, with the first rescue teams 
going underground at approximately 5:30 p.m. Due to the extensive 
damage from the explosion, the rescue teams reportedly had to proceed 
more than a mile on foot to reach the working section.
    Within 10 hours of the explosion, rescue teams had found 18 victims 
in the Upper Big Branch Mine, in addition to the seven dead and two 
injured miners evacuated by fellow miners immediately following the 
explosion. Rescue efforts continued in the early morning hours of April 
6, but were suspended when rescuers reported encountering heavy smoke, 
methane, and carbon monoxide. Rescuers started drilling bore holes to 
clear the air inside the mine before the rescue teams re-entered the 
mine.
    Mine rescue teams made additional efforts to enter the mine early 
in the morning of Wednesday, April 7, the night of Thursday, April 8, 
and early in the morning of Friday, April 9. Each time they were forced 
to exit before the final four miners were found. Finally, on the 
evening of April 9, the final four miners were found--three in the 
long-wall 22 section, and one in the long-wall headgate area. A total 
of 29 miners died as a result of the explosion, and one remains 
hospitalized. From the time of the explosion until the last missing 
miner was located, the rescue effort lasted 104 hours.
    These tragic events followed a years-long effort by MSHA to use the 
tools we had available to force Massey Energy to comply with the law 
and turn around its extensive record of serious safety and health 
violations at the Upper Big Branch Mine. From 2007 until today, MSHA 
has steadily increased its enforcement presence at Upper Big Branch 
Mine. In 2007, MSHA inspectors were onsite at Upper Big Branch mine a 
total of 934 hours. In 2009, inspectors were onsite at the mine for a 
total of 1,854 hours.
    During all those hours of inspections, MSHA found and issued an 
increasing number of citations for ``significant and substantial'' 
(``S&S'') violations of the Mine Act, including an alarming number of 
citations and orders requiring miners to be withdrawn from the mine. In 
December 2007, MSHA informed the mine it could be placed into ``pattern 
of violations'' status if it did not take steps to reduce its 
significant and substantial violations. If implemented, pattern of 
violations status would have given MSHA a powerful enforcement tool, 
enabling the agency to order the withdrawal of miners from any area 
with S&S violations until such violations were fixed. However, the mine 
operator was able to successfully avert these consequences by reducing 
the levels of serious violations thereby avoiding being classified in a 
``pattern of violations'' status.
    Upper Big Branch mine again experienced a significant spike in 
safety violations in 2009. MSHA issued 515 citations and orders at the 
mine in 2009 and another 124 to date in 2010. MSHA issued fines for 
these violations of nearly $1.1 million; though, most of those fines 
are being contested by Massey.
    The citations MSHA has issued at Upper Big Branch have not only 
been more numerous than average, they have also been more serious. Over 
39 percent of citations issued at Upper Big Branch in 2009 were for S&S 
violations. In some prior years, the S&S rate at Upper Big Branch has 
been 10-12 percent higher than the national average.
    In what is perhaps the most troubling statistic, in 2009, MSHA 
issued 48 withdrawal orders at the Upper Big Branch Mine for repeated 
actions that could significantly and substantially contribute to a 
hazard that the operator knew or should have known violated safety and 
health rules. Massey failed to address these violations over and over 
again until a Federal mine inspector ordered it done. The mine's rate 
for these kinds of violations is nearly 19 times the national rate.
    Despite the 515 citations and orders issued at Upper Big Branch in 
2009, three other Massey mines had more citations. The Department of 
Labor is in litigation to establish that one of these, the Tiller #1 
Mine operated by Massey's Knox Creek Coal Corporation, is a pattern 
violator. If MSHA prevails in the litigation, Knox Creek will be the 
first mine to be placed on pattern of violations status since the 
passage of the Mine Act.
      msha's current tools for holding mine operators accountable
    Following my confirmation as Assistant Secretary of Labor for Mine 
Safety and Health, I began evaluating MSHA's enforcement program to 
identify areas in need of improvement. Among those identified was the 
need for mine operators to take more responsibility for the high number 
of violations being cited at mines across the country, increasing mine 
operator inspection requirements and reforming the ``pattern of 
violations'' program.
    In the days since the Upper Big Branch mine explosion, we have 
spent a considerable amount of time at MSHA reviewing the tools 
available to MSHA to enforce the law, the weaknesses in those tools, 
and how we think those tools should be changed. I would like to start 
by describing the tools we have available.
    Federal law places the responsibility for compliance with safety 
and health standards on mine operators. MSHA is charged with the 
promulgation and enforcement of those standards. Under the Mine Act, 
MSHA inspects all underground mines at least four times annually and 
all surface operations at least twice annually. The act requires 
inspectors to cite all violations they observe. MSHA also investigates 
all fatal accidents and miner complaints of hazardous conditions or 
discrimination.
    When faced with a mine with a seriously deficient safety record 
like the Upper Big Branch mine, MSHA has limited tools to hold bad 
actors accountable and to try to force them to change their behavior. 
For example, MSHA can withdraw miners from a mine or a section of a 
mine, if an inspector finds a condition which presents an ``imminent 
danger.'' The withdrawal order is in effect only until the hazard is 
abated. Since 2000, MSHA issued five imminent danger orders at the 
Upper Big Branch mine, with the last one coming in 2009.
    MSHA also has the authority to require abatement of all cited 
violations. If a mine operator fails to abate a violation within the 
time prescribed by MSHA, MSHA can withdraw miners from the affected 
portion of the mine until the operator corrects the condition and MSHA 
ensures that the hazard no longer exists. Since 2000, MSHA issued 17 of 
these withdrawal orders at the Upper Big Branch mine, including four in 
2009 and one in 2010.
    MSHA can hold operators who engage in actions that could 
significantly and substantially contribute to a hazard that they knew 
or should have known violated safety and health rules to a more 
rigorous enforcement regime. If MSHA finds repeated violations of this 
type, known as ``unwarrantable failures,'' it can immediately issue 
orders withdrawing miners from the affected area of the mine until MSHA 
determines that the violation is abated. Since 2000, MSHA has issued 17 
withdrawal orders under Section 104(d)(1) of the Mine Act based on 
unwarrantable failures, and 67 withdrawal orders for repeated similar 
violations under Section 104(d)(2) of the Act at the Upper Big Branch 
mine.
    Finally, MSHA has the authority to place a mine into a ``pattern of 
violations'' category based on a number of criteria including the 
number of serious violations within a 24-month timeframe. If a mine 
ultimately ends up in a ``pattern of violations'' status, MSHA can 
issue withdrawal orders for every serious violation until each 
violation is fixed. The Upper Big Branch mine was placed into a 
``potential pattern of violations'' category in 2007, but quickly 
reduced its serious violations by more than 30 percent to avoid ending 
up in an actual pattern of violations status.
    Were it not for a computer error in the screening process, the mine 
could have been placed into a potential pattern of violations status in 
October of 2009, when the last pattern of violations review for this 
mine took place.\1\
---------------------------------------------------------------------------
    \1\ MSHA will be notifying the pattern of violations screening 
process and revising and confirming the accuracy of the programming and 
query system used going forward.
---------------------------------------------------------------------------
    Upon notification of being in potential pattern of violations 
status, the mine then would have been given 90 days to reduce its S&S 
violations by 30 percent, or to reduce its level of S&S violations to 
below the industry average for mines of similar type and size. From 
October through December 2009, the Upper Big Branch Mine dramatically 
reduced its level of S&S violations by nearly 65 percent. For this 
reason, even had there been no computer programming error, the mine 
would not, under MSHA's current rules, have been in a pattern of 
violations status at the time of the explosion.
                   weaknesses in msha's current tools
    When I accepted President Obama's appointment to lead MSHA, I had a 
number of goals and reforms in mind for the agency. The most important 
of these goals was to shift the current enforcement model for mine 
safety and health to one that is consistent with the intent of the Mine 
Act--a model in which all mine operators take primary responsibility 
for ensuring compliance with safety and health standards. While tough 
enforcement is critical to having safer mines, MSHA cannot be in every 
mine, every day on every shift. That is why miners are safest when 
employers take responsibility for preventing violations and hazards, 
not when MSHA cites them.
    MSHA's current toolbox of enforcement measures is not well stocked 
to encourage prevention. While many mine operators and other employers 
in dangerous industries have a culture of safety, driven by the 
recognition they are responsible for safeguarding their workers' safety 
and health, others choose a different approach. They choose to take 
advantage of the fact that MSHA cannot be looking over their shoulders 
at every minute of every day to monitor their behavior. They make a 
calculated decision about how and if they should comply with mine 
safety and health laws, weighing the likelihood they will be caught 
against the consequence if they should. This is the ``catch-me-if-you-
can'' approach to safety and health in action.
    The ``catch-me-if-you-can'' model of workplace safety and health 
appears to have been at work at Upper Big Branch. The company that owns 
this mine, Massey Energy, has a troubling record when it comes to 
protecting its workers. In Calendar Year 2009, MSHA assessed nearly 
10,985 citations and orders against Massey Energy. Systemic safety 
problems are not limited to the Upper Big Branch mine, to Massey 
Energy, or to the mining industry. Indeed, the ``catch-me-if-you-can'' 
approach to compliance appears in all types of American workplaces. My 
colleague, Dr. David Michaels, will shortly testify about how OSHA is 
dealing with this phenomenon in the non-mining sector.
    At MSHA, our ``pattern of violations'' program should be one of our 
most serious and effective tools for holding bad actors accountable. 
MSHA's experience at the Upper Big Branch mine demonstrates the 
program's limitations under current procedures.
    Massey Energy employed a popular tactic at Upper Big Branch used by 
mines with troubling safety records to avoid potential pattern of 
violations status. Massey Energy contested large numbers of their 
significant and substantial citations. In Calendar Year 2009, the 
Massey Energy Company was assessed penalties that totaled in excess of 
$13.5 million, and contested $10.5 million of those penalties, or 78 
percent. MSHA uses only final orders to establish a pattern of 
violations. It takes more than 600 days for the average contested 
citation to reach the ``final order'' stage from the day the citation 
is written. The delay is due largely to a more than 16,000 case backlog 
at the independent Federal Mine Safety and Health Review Commission 
(FMSHRC).
    Even where the violation is obvious, operators have a huge 
incentive to contest the violation. A contest blocks MSHA from using 
the violation--even the obvious ones--to put the mine into a potential 
pattern of violations for an average 500 days after the case has been 
contested. For operators with troubling safety records, that may amount 
to 500 days without having to worry about being put into a ``pattern of 
violations'' status. In fact, the Upper Big Branch mine contested the 
majority of its serious violation citations. From 2007 to 2009, the 
mine contested 77 percent of its S&S violations.
    Even when the excessive contest strategy fails and a mine ends up 
in a ``potential pattern of violations'' status, it can almost always 
avoid the ultimate ``pattern of violations'' label with temporary 
improvements in safety. The current system allows an operator to avoid 
going into pattern of violation status if the operator reduces its S&S 
violations by more than 30 percent within 90 days. Upper Big Branch 
mine did this in 2007 and avoided pattern of violations status, even 
though the number of S&S violations remained above the national 
average. The policies this Administration inherited make it relatively 
easy for operators like Massey to avoid pattern of violations status. 
In fact, MSHA has been able to place only one mine into pattern of 
violations status, and that order was revoked when one of the 
violations on which it was based was thrown out through the contest 
process.
    As you can see, the current rules and procedures make it far too 
easy for mines to avoid the one robust tool MSHA has for really 
cracking down on recalcitrant operators.
                improving msha's tools: areas for reform
    The weaknesses in even our strongest tools are clearer in the wake 
of the Upper Big Branch tragedy. The path we need to be on to 
strengthen those tools is clearer, too. Undoubtedly, as we learn more 
about what happened at Upper Big Branch, we will have more and better 
ideas about how to change our practices, regulations and law. For now, 
I would like to outline some of the steps we are taking already and 
those we would like to recommend.
    Plan/Prevent/Protect Regulations. Secretary Solis is committed to 
changing the ``catch-me-if-you-can'' approach everywhere it exists. 
That's why our regulatory agenda, which we made public just yesterday, 
is focused on regulations that will require companies to take 
responsibility to find and fix problems before they are discovered by 
the Department's worker protection agencies. To achieve this goal, we 
need a system that encourages employers to engage in planning and 
control of hazards. This kind of planning, coupled with enforcement, 
will result in actual protection of workers or what we call the ``plan/
prevent/protect'' system.
    At MSHA, we announced that we are moving forward to solicit 
information on requiring use of a comprehensive health and safety 
management program. In addition, we will be proposing a rule to re-
institute the pre-shift examinations in areas of mines where miners 
work or travel for violations of mandatory safety and health standards. 
The 1969 Coal Mine Health and Safety Act (and the Mine Act) provides 
that such inspections may be required, and the requirement had been 
contained in MSHA's regulations until they were changed in 1992. We 
believe that these measures will help prevent hazardous conditions from 
ever existing and threatening workers.
    Pattern of Violations. We know that even with these new measures in 
place it is too easy for mine operators to evade responsibility and too 
hard for the government to hold bad actors accountable. We must find 
new ways to compel chronic violators to protect the health and safety 
of their workers. The ``pattern of violations'' tool was placed in the 
Mine Act in 1977 to achieve that very goal.
    As I noted in my February 23, 2010, testimony before the House 
Committee on Education and Labor, the current criteria used for 
determining that an operator has a potential pattern of violations 
include a mine's history of S&S violations of a particular standard, 
history of S&S violations related to a particular hazard, and history 
of S&S violations caused by an unwarrantable failure to comply with 
health and safety standards.
    Under current regulations, MSHA only considers violations that have 
become final orders of the FMSHRC. Citations and orders that are under 
contest, no matter how egregious, are not considered in establishing 
that a mine has a potential pattern of violations. Once a potential 
pattern is found, an operator has a notice period to reduce the number 
of S&S violations at its mine. If the operator fails to reduce the 
number of violations, only then are they placed in pattern of 
violations status. By the time the current process is over, mine 
operators are being considered for pattern of violations status based 
on violations that, in many cases, were written years ago.
    We realize the current ``pattern of violations'' program is broken 
and must be fixed. That is why in our regulatory agenda we announced 
that we will be issuing new regulations to simplify the criteria for 
placing mines into the ``pattern of violations'' program. We are 
looking into what other changes in the regulations or statute are 
necessary to streamline the ``pattern of violations'' program and make 
it more effective, including strengthening the conditions for operators 
being removed from ``pattern of violations'' status. We will consider 
what notice period, if any, is appropriate, and how the use of health 
and safety management programs for operators with these kinds of 
serious violations can play a role in improving the pattern of 
violations system. Meanwhile, right now we are in the process of 
reviewing pending cases of operators with significant numbers of S&S 
citations in order to expedite appropriate cases.
    In addition, we are considering greater use of other authorities 
for stopping scofflaw mine operators more quickly, such as the existing 
authority under the Mine Act to seek permanent or temporary injunctive 
relief. The Mine Act empowers the Secretary to obtain an injunction in 
Federal court against a mine operator she believes is engaged in a 
``pattern of violations'' of the Mine Act. Though it has been a part of 
the act for years, we do not believe any Administration has ever 
attempted to use the provision. Because we do not believe that the Mine 
Act requires a Federal court to have final orders in hand from FMSHRC 
in order to issue an injunction against an operator with a pattern of 
violations, bringing this existing tool into the Department's arsenal 
will enable it to bypass the backlog of cases awaiting final orders 
from FMSHRC and permit it to take swift action against mine operators 
who are chronic lawbreakers.
    Injunctive relief obtained directly from a Federal court would 
combine strong enforcement with immediate safety measures. This relief 
could be used to require court-ordered, company-funded, full-time 
monitoring of problem mines, or the implementation of a comprehensive 
mine or corporate-wide health and safety plans. Most important, it 
could be used to shut down mines until they can assure compliance with 
the law. MSHA could take direct action through the courts.
    FMSHRC Backlog. While the backlog at FMSHRC adversely impacts the 
use of MSHA's current ``pattern of violations'' process, more 
fundamentally it has severely reduced the deterrent value that 
penalties were meant to have. There are more than 16,000 cases pending 
before FMSHRC, including $209 million in contested fines. The average 
case takes more than 600 days to resolve from the time it is issued. I 
believe that we need budgetary, regulatory, and legislative action to 
solve this problem.
    The budgetary actions needed would include building on the 
Administration's proposed 27 percent increase in FMSHRC's budget this 
year to provide sufficient personnel to quickly resolve disputes.
    MSHA's planned regulatory actions include improving the use of 
effective mine safety and health management programs by all mine 
operators. The best way to resolve the backlog problem looking forward 
is for mine operators to take full responsibility for compliance with 
the Mine Act and mandatory health and safety standards issued under it. 
They must take measures to ensure safer and healthier mines that, under 
rigorous and complete inspections, receive fewer citations and orders 
from MSHA because there are fewer violations to cite. This will require 
operators to more fully inspect their own mines for violations.
    Helpful legislative actions could include requiring mine operators 
to put significant penalty amounts, as well as penalties associated 
with more serious violations, into escrow or providing for pre-judgment 
interest. If operators have to put aside penalty amounts during the 
contest period or know that they will have to pay interest if a penalty 
is ultimately imposed, they will be less likely to contest cases just 
for the sake of delay. The current system provides a financial benefit 
for delaying tactics.
    In testimony before the U.S. House of Representatives on February 
23, 2010, I outlined specific measures MSHA was considering to address 
the backlog problem. They included making the citation process more 
objective and consistent by simplifying the citation and penalty 
determination process and improving related training, improving the 
conferencing system, making greater use of the ``closeout'' inspection 
meeting after mine inspections, continuing to develop training programs 
and materials to aid mine operators with compliance, and corporate-wide 
holistic settlements that require operators to implement meaningful 
health and safety programs.
    Enhanced investigative and law enforcement tools. MSHA and Federal 
prosecutors need more tools to investigate and punish wrongdoing. Gaps 
in MSHA's legal tools undermine the deterrent effect of its 
investigative powers. MSHA should have the authority to issue subpoenas 
to require companies and individuals to turn over documents promptly 
when needed. Moreover, MSHA's criminal penalties must be enhanced so 
that the threat of jail is real for the most egregious violators. 
``Knowing'' violations of key safety laws should be felonies, not 
misdemeanors.
    Empowering miners. No one knows what goes on in a mine, including 
what safety corners are being cut, better than the miners. They must 
have a voice in the workplace if we want to know about hazards before 
they cause death and injury. Empowering miners to protect themselves 
will give them that voice. Too many miners are afraid of losing their 
jobs or facing other forms of retaliation for raising valid safety 
concerns to MSHA.
    We believe that additional measures would give miners the courage 
and confidence to come forward when necessary. For example, the statute 
should be amended to enhance protections for miners from retaliation 
when they do come forward. Miners should be assured of pay and should 
not have to wait months to get it while a withdrawal order is in 
effect. They should not have to balance the risk to their paycheck with 
the risk to their lives. We look forward to working with the committee 
on strengthening whistleblower protections for the Nation's miners.
    As the preliminary report Secretary Solis and I provided to the 
President noted, this is not an exhaustive list. We should build on 
recent improvements in the transparency of MSHA data, so that before an 
accident occurs, miners and the public can easily use MSHA reports and 
data to identify companies that must improve their safety practices.
    Other critical steps, for example, could address particular 
conditions, such as improving control of mine gases, rules to ensure 
sufficient rock dusting, and improving mine emergency response. We are 
reviewing the full range of our legal and regulatory authority, as well 
as possible management reforms, and will continue to do so as we move 
forward with the investigation to determine how to ensure that another 
disaster like the explosion at the Upper Big Branch mine does not 
happen again.
                               conclusion
    At 3:02 p.m. on April 5, 2010, an explosion occurred at the Upper 
Big Branch mine and took the lives of 29 miners. Any loss of innocent 
life of this magnitude is a profound tragedy. Making this event even 
more tragic is the fact that, as history has shown us, mine disasters 
are preventable.
    I had the opportunity to watch the mine rescue teams and MSHA 
personnel coordinating the response and the search for survivors. I had 
the honor of meeting with the families of the miners as they waited for 
news about their loved ones. They showed an unbelievable level of 
courage and composure even when they knew they were facing difficult 
odds.
    We know the kinds of events that lead to explosions in coal mines, 
and we know the actions that can be taken to prevent them. There are 
specific techniques that a mine operator can employ to reduce the 
levels of combustible materials such as methane and coal dust. Equally 
important is an operator's commitment to a culture of safety centered 
around protecting the health and safety of his or her workers, rather 
than simply avoiding a citation or a fine.
    MSHA has assembled a dedicated team of professional investigators 
that will look into every aspect of this accident. We will work closely 
with State officials. During our investigation, we will honor our 
commitment to transparency and openness, and we will make the results 
of our investigation fully public at its conclusion. At that time, we 
will present you, the President, the families, and the American people 
with a formal report on our findings.
    We take every incident that results in injury or loss of life 
seriously and personally. Due to the limits of the current authority 
given to MSHA, and the efforts companies like Massey will take to 
escape enhanced enforcement, we think it is necessary to examine the 
statutes, regulations and policies on the books and ask ourselves what 
more we can do to ensure the health and safety of America's miners. 
These men and women work hard every day to ensure that we have the 
electricity we need to light our homes, power our industries, and 
ensure our national security. We owe it to them to do everything we can 
to make sure that every miner--and every worker--comes home safely at 
the end of every shift.
    I look forward to continuing to work with this committee and would 
be happy to answer any of your questions.

    The Chairman. Thank you very much, Mr. Main. Thank you for 
your leadership.
    Just one question I have for you. You said that MSHA's 
taking a look at regulatory changes that will simplify the 
criteria for placing mines in the Pattern of Violations 
program. I guess, if you don't want to get into all that now, 
I'd ask you to submit to us what those regulatory changes are 
that you can do, that we don't have to address legislatively. 
If there are things you can do with regulations that relieves 
us of the burden of doing it legislatively, we'd much rather do 
that so we can focus on just what we need to do legislatively. 
If you could maybe submit that to us later on.
    Mr. Main. I'll be happy to do that.
    The Chairman. A good list of those regulatory changes.
    Mr. Main. We will do that.
    The Chairman. I'd appreciate that very much.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman.
    Thank you very much, Mr. Main, for being here to testify on 
all the work that you and your inspectors do.
    Do you know if MSHA has ever sought injunctive relief to 
close a mine that had been deemed to constitute a continuing 
hazard to miners?
    Mr. Main. In terms of the injunctive relief that we're 
talking about, I think what we're about to pursue is probably 
going to be the first time in the history of using that under 
the MINE Act, from what I'm told from our legal department.
    Senator Isakson. It is true you already have injunctive 
relief, is that correct?
    Mr. Main. There is injunctive relief that exists--that 
talks, in part, about being part of the Pattern of Violations. 
There is some language that will probably be tested. There is a 
provision, that we fully intend to test, and there may be a 
need for Congress to take a look at remedying any shortcomings 
in that injunctive relief as we move forward.
    Senator Isakson. To date, you've never used the power that 
you do have. Is that correct?
    Mr. Main. That particular power, to my knowledge, in the 
history of the MINE Act since 1969, I do not believe that's the 
case. Yes.
    Senator Isakson. In your printed statement of your remarks, 
your preprinted testimony, on the third paragraph of page 5, 
you cite a spike in violations at this mine, and refer to 515 
citations that were filed in 2009, and 124 in 2010. To try and 
figure out what those violations would be, I divided that 
number into that 1.1 million, which was the amount you said 
those fines would accumulate to. That's a $1,725 average fine 
per 624 violations. Then I went to look at the authority that 
you've got on fines, and under civil penalties at MSHA, you've 
got up to $50,000 on standard violations, up to $220,000 
flagrant violations, up to $5,000 a day on a failure to 
correct, $250,000 on a criminal willful violation, $500,000 on 
a repeat willful violation, and then $10,000 or 5 years in 
prison for making a false statement to authorities.
    If I take those numbers of authority and talk about serious 
violations, it wouldn't take a minute to get to $1.1 million, 
yet you issued 639 violations during that 15-month period 
leading up to the explosion. Were most of those 624 violations, 
like, a rag being found or a miner smoking or something like 
that? What were those violations?
    Mr. Main. As far as miners smoking, I'm not aware that any 
dealt with that. I think the most often cited were ventilation 
problems, combustible material problems, things of that nature. 
I think one of the--and having been on this job for about 6 
months, and trying to figure out how all these components work, 
and looking back to how the MINE Act was enforced, and the 
tools that the agency had to use during the course, 
particularly, of that spike, and understanding the whole 
penalty process, one of the things I came to realize is that 
probably the tool that is most effective, even beyond the 
dollars, is the ability to shut down a facility to get a 
problem fixed. I think, when I looked at what the agency did 
over that period of time, they seemed to ratchet up the use of 
that tool much more than is normal. As a matter of fact, I 
think this mine wound up to have the most 104(d)(2) orders of 
any mine in the United States.
    Senator Isakson. Those are shut down orders?
    Mr. Main. Those are shutdown orders.
    Senator Isakson. How many times was that done?
    Mr. Main. There were 48 of those that was issued at the 
Upper Big Branch Mine. And from the statistics that the folks 
showed me, that was the mine that had the most. It's been my 
view that over time, the quickest way to get something fixed is 
to stop it and fix it.
    One of the worries I have is that we do need to fix this 
penalty system. I don't think there's any question about that. 
This contest process has really, I think, crippled the 
implementation--MINE Act crippled the--what I think was some 
great provisions put in, in the new MINER Act. That's the 
reason that we've looked at some of these quicker enforcement 
tools, and ones that deal with, sort of, the halting of the 
process until things get fixed. The two on top of that list, 
one is this injunctive action, that we're talking about, that 
we really need to put in use, and put in use quick, as opposed 
to later.
    Everyplace that I went in the last couple weeks, I was 
asked a simple question, ``Why didn't you shut that mine 
down?'' If you look at the way all those orders or, all those 
tools are laid out, it's basically designed to find an area of 
the mine that's out of compliance, force the operator to fix 
that, and, once it's fixed, to go back into compliance. As far 
as a tool that's really laid out to deal with a holistic mine 
problem that encompasses several standards, the only one that 
you have is the Pattern of Violations, really, that's been used 
over the last--well, the Pattern, since 1977; and that's the 
heaviest tool, I think, that's been in the MINE Act since 1969.
    We need to do something quick, which--the injunctive relief 
is your best tool that we've looked at. We need to fix this 
Pattern problem, where people actually respect it. To have a 
law that was put into effect after the Scotia disaster in 1977, 
that I think Congress really thought was going to fix a 
problem, the application of that law was undercut. We went 
through 33 years without one single mine ever actually having 
been placed on the Pattern. That may change if the courts agree 
with us here with the case that we have going forward.
    As we looked at the Pattern--and I was looking at this 
prior to the Upper Big Branch disaster--this is something that 
we talked about at the House hearing in February. The Pattern 
system we saw was broken, in respect to how difficult it was to 
put mines on that has a troubled compliance history, and how 
easy it was to get off. Setting there, you can see how it's 
very easy to game the system on both ends. Contest the 
violations, let them string out; it'll be years before it ever 
gets there, and they're going to be so overloaded in the court 
system that scheduling a hearing's going to be difficult. And 
still will be, if we don't fix that side of the problem.
    On the getting-off side, means that they don't really get 
put on the Pattern, they are put on notice that they can be on 
a Pattern, but if they drop their S&S rate for just a short 
period of time, they can get off. We've had mines, that I saw, 
in looking to the data, that have been, twice over, identified 
as Pattern mines.
    The Pattern hasn't been used much. I think if you go back 
in the mid-1990s, for a short period of time, and then, just 
recently, post-2007, is about the only periods of time that the 
Pattern was ever utilized as a tool. What we aim to do and--in 
regard to my testimony in February, and what we aim to do now, 
is to fix that.
    This 24-month history is a problem. This 24-month history 
held hostage to the contest process is a problem. How we select 
these mines--from what I've seen I'm not happy with that. We 
need a better identifier of a formula. The computer error that 
was found, that's just one of the issues that I think we have 
to go back and repair to make this system work.
    To make it work, I think we have to have a process in place 
that effectively identifies those mines that has a troubled 
history. We have to quickly deal with applying the Pattern. 
We've got to make it tough for them to get off. Tough means 
that, if you believe that they got there, in the first place, 
because they didn't have an effective health and safety 
program, and they weren't inspecting their mine to take care of 
business, one logical assumption would be--for them to get off, 
they would have to have an effective health and safety program 
that does that. Not just over 90 days for a drop of the S&S 
violations, but to fix so those miners can have some comfort.
    Another issue that we've looked at is this subpoena issue. 
There was a story that hit today, over three other mines that 
MSHA made inspections at recently, two of them before the Upper 
Big Branch disaster and one after the disaster. All three of 
those was triggered by anonymous complaints. Now, did miners 
make those complaints? We don't know. There was some 
specificity that probably some miners were worried; worried 
enough about it to make a call, but was careful enough not to 
leave their name behind.
    When our inspectors went in those mines, we found illegal 
conduct that one would not think that we would see in mines 
today, and conduct that was only found because, when the 
inspectors got there in two mines, they captured the phone so 
the mine operators couldn't call underground.
    Senator Isakson. I hate to cut you off, but the Chairman's 
about to have a hissy fit over here because we've gone 5 
minutes over.
    Can I just ask for one clarification that takes two words?
    The Chairman. OK, sure.
    Senator Isakson. You want to replace ``hazard to miners,'' 
in the current injunctive relief, with the terminology 
``Pattern of Practice,'' is that what I heard you say?
    Mr. Main. I'm sorry?
    Senator Isakson. Currently under injunctive relief, you're 
allowed to do it if you see a persistent hazard to miners. You 
wanted--and what I was trying to understand out of your 
testimony, you'd like to expand that or change it to ``Pattern 
of Practice'' of the mine operator. Is that correct?
    Mr. Main. Yes. We want to work with Congress to actually 
fix that, and talk through what we really need to do to change 
that language.
    Senator Isakson. OK. Thank you, sir.
    Mr. Main. OK.
    Senator Isakson. Sorry about that.
    The Chairman. No, that's alright, Senator Isakson. Thank 
you very much.
    Senator Byrd wanted to attend. He is unable to attend the 
hearing. He gave me some questions he wanted to ask. I will 
submit those, for the record, to you, Mr. Main, without asking 
them.
    [The information referred to may be found in Additional 
Material.]
    We are privileged to have Senator Rockefeller here to join 
us.
    Just in terms of the order, I'd say it's Rockefeller, 
Senator Brown, Senator Murray, Senator Bennet, and Senator 
Franken, unless Republicans show up, in which we'll go back and 
forth.
    Senator Rockefeller. Mr. Main, this is 26 pages of 
violations at the mine that we have just been dealing with. 
They take place, actually, only since January 1, 2009. We're 
talking about a relatively short period of time, and all of 
these violations. Now, I'm constantly--you run into mine 
ventilation plan, dust control, all kinds of things which are 
accumulation of combustible materials, all things with are just 
bespeaking of something about to happen.
    My question is--we're sitting here sort of fixed on the 
Pattern of Violation. Should it be, should it not be? Why isn't 
it possible for one of your people, a Federal inspector, duly 
trained, when they come upon such a thing, maybe they make a 
quick phone call to you, or something of that sort, but that 
they have the power to shut down that portion of the mine which 
appears to be affected, and which----
    Mr. Main. Yes.
    Senator Rockefeller. These are all for real. These are all 
very, very much for real. They carry fines with them, they 
carry violations with them, they're part of the problem which 
is squashing MSHA, in terms of working out the appeal process 
and all the rest of it. I don't want to imply that MSHA's a 
bureaucracy, but I do want to imply that you have individual 
folks who are well-trained, who are professional mine 
inspectors; they see these problems; many of them have worked 
in the mine, maybe most of them have worked in the mines, so 
they have to know what it is. It's pretty hard to miss 
combustible materials when you're looking at it. It's pretty 
hard to miss ventilation problems when you're feeling it. Why 
can't they take action? Why is it that we have to go through 
this enormous thing leading up to a Pattern of Violation, 
which, in fact, has never been used?
    Mr. Main. Probably a good way to start this is 
understanding what the tools are that the inspectors have. I 
don't disagree with you, Senator Rockefeller. And I think 
you're going to see a more aggressive use of tools that exist 
in that MINE Act.
    If you look, historically, at what's happened--I'm going to 
take an easy one, a situation where you have a continuous miner 
that is not permissible. What that means is that there's some 
component on that piece of equipment that has a gap where--in 
the housing that houses the electrical components, of which a 
spark, a tiny spark, could get through that could ignite an 
explosion. The cause of Commission decisions--and this is 
something we have, too, on our decks that we want to talk about 
some reforms on--the Commission decisions, over the years, have 
defined those kind of standards to the point that it is very 
difficult for that inspector to cite--and just starting up the 
ladder--those kind of conditions as a S&S, or serious 
violation.
    When I looked at the way the standard's applied currently, 
and found that you almost have to have the explosion occur to 
find a serious violation in that regard, that tells me we've 
got a problem with the way that the standards are being 
interpreted, and the way they're being applied in this country, 
but it's over years of litigation through the review 
Commission.
    When an inspector goes to the mine, they have full 
authority to use their tools, whatever they have at their 
disposal, if they determine a condition as imminent danger, to 
issue that 107(a) order to have those miners moved from that 
particular area until the company fixes that specific problem. 
Let's say its curtain down; once the company puts the curtain 
back up, the ventilation curtain, they can go back to work.
    Senator Rockefeller. Mr. Main.
    Mr. Main. Yes.
    Senator Rockefeller. Ventilation is no mystery; you can 
feel it. Dust is no mystery; you taste it, you can smell it, 
and you breathe it in. Why, if that is a condition that one of 
your inspectors finds, that he cannot simply close things down 
for a period of time so that that can be fixed?
    Mr. Main. In the past, I think that there has been a 
weakness in the enforcement of the law, and that has a lot to 
do with the way that the law has been interpreted, that--to be 
honest--I think, going forward, we're going to test that every 
day, to utilize the tools that's in our possession.
    During this recent sweep, as an example, that we kicked off 
after the Upper Big Branch--and the focus of that was to make 
sure we didn't have another Upper Big Branch out there in any 
of the mines--we had six mines that were actually shut down 
because the tools that was in that tool bag was probably more 
used than they have been over time. Now, once the companies fix 
those--like the ventilation problems, clean up the coal dust--
--
    The Chairman. Mr. Main----
    Mr. Main. Yes.
    The Chairman [continuing]. I'm going to interrupt you, 
right here, just a second.
    Mr. Isakson just gave me this,

          ``MSHA may seek temporary or permanent injunctive 
        relief to close a mine or take any other appropriate 
        action whenever it finds a mine operator engaged in 
        behavior that constitutes a continuing hazard to 
        miners, under Section 818(a).''

    You just said you've got dust; we know dust is a hazard. It 
can be an explosive hazard. I mean, that's not even a question. 
He asked you a very straight forward question.
    Mr. Main. That's----
    The Chairman. Why can't you use that? Why has it never been 
used? Is that what you're telling me?
    Voice. That was his answer to me some time ago.
    Mr. Main. Yes. It's never been used in the history of the 
MINE Act, that we know of, Senator. We're in the process----
    The Chairman. Why?
    Mr. Main. That's a good question.
    The Chairman. Well, who can answer it?
    Mr. Main. We're going to use----
    The Chairman. If you can't answer it who can answer it?
    Mr. Main. I can't speak for past Administrations, but I can 
tell you this. We're going to use it.
    The Chairman. Well I sure hope so.
    Mr. Main. Yes.
    The Chairman. If nothing else comes out of this hearing, at 
least you're going to start using that for the future.
    Mr. Main. It will be used.
    The Chairman. Thank you, Mr. Main. I'm sorry to interrupt 
you, but I wanted to get that issue taken care of. I'm sorry to 
have interrupted you on that, but----
    Senator Rockefeller. You didn't.
    The Chairman. I appreciate that, thank you.
    Now, can we go to Senator Brown?
    I ask people, please keep in mind that we have three more 
panels.
    Senator Brown. I think Senator Enzi was next, was he not?
    Voice. [Inaudible.]
    The Chairman. OK.

                       Statement of Senator Brown

    Senator Brown. Well, thank you, Mr. Chairman, for holding 
this hearing.
    Mr. Main, thank you for joining us, and the other panels, 
from the mine workers and citizens and people in the community 
in West Virginia.
    Tomorrow is Workers Memorial Day in this country, a day to 
honor the working men and women killed, disabled, or injured on 
the job. In my State of Ohio, alone, in 2008, 167 workers died 
on the job, nearly 119,000 injury claims were filed with Ohio 
Bureau of Workers Compensation.
    Before my question, I'd like to share a real quick story 
that I had actually shared with Mr. Main when he was in my 
office. I wear on my lapel--it was given to me at a Workers 
Memorial Day, 10 years ago, a depiction of a canary in a 
birdcage--and everybody in this room knows what that's about--
to signify the importance of worker safety and all the other 
things that come with that.
    The question I have is that you mentioned in your 
statement, Mr. Main, that quote ``MSHA has limited tools to 
hold bad actors accountable and to try to force mining 
companies to change their behavior.'' You gave an example of a 
tool that MSHA does use to force a change in behavior, by 
issuing a withdrawal order in stopping production. These orders 
are only used when conditions present imminent danger. My 
question is, Isn't that too late? Are withdrawal orders used 
enough? Are the thresholds that make a withdrawal order 
necessary adequate to prevent disasters?
    Mr. Main. Yes, there are about four basic tools that the 
inspectors have under the MINE Act to take action. One is what 
we call 104(a) citation, which is--they cite the condition; if 
it isn't corrected in the time given to abate, it's what we 
call a 104(b) closure order.
    Now, we have the 107(a) imminent danger order, which, if 
the inspector observes a condition they believe to be 
imminently dangerous, they can take quick action for that 
condition, shut down that area until it's corrected.
    We have the 104(d)(1) and (d)(2) orders. 104(d)(1) order is 
conditions are serious, that are willful violations by the mine 
operator, that can be cited first as a citation, and then as an 
order. Then, once they issue that--which closes down that area, 
once they issue an order, until that condition's fixed. Once a 
mine gets on what we call the (d)(1) series, any subsequent 
inspection, when the inspector finds a similar violation, they 
can issue an automatic (d)(2) order. That was the 48(d)(2) 
orders that was issued at the Upper Big Branch, and how they 
got to that.
    Then, the other provision under the MINE Act is the 104(e) 
Pattern of Violations, which is a long process to get to. It's 
a system that's broken.
    The injunctive relief action that has been spoken about 
here is something that our folks have been taking a look at. 
And we do fully intend to implement that. It is the one tool in 
the MINE Act that gets to a broader application. We are asking 
Congress to take a look at that, to--presuming there'll be some 
challenges to that--look at those pieces in there that may be 
troubling. We're going to take the first run of using that 
through the courts, but that's one that we hope to have some 
support from Congress.
    That's basically the tools that exist.
    Senator Brown. Do you think the withdrawal orders used--
stopping production--are they used too late? Are they used 
early enough that it saves lives?
    Mr. Main. It's my belief--and that's the reason we're 
looking at a number of things that I think that we have to do 
to fix this problem. We've got to figure out a way to empower 
those miners, that are working in some of these conditions, 
that are fearful to report, and figure out how we can empower 
them to be able to take action to protect themselves. That's 
the issue that I think is front and center here.
    As I look at the penalties versus the order--I mean, the 
one that gets you to the quickest action, in my opinion, is 
that order. Penalty is just going to be--for whatever is the 
end result of the penalty process, however it's worked out, 
it's going to be a lot longer period of getting the penalties 
worked out.
    Senator Brown. Well, that's, obviously, the point of the 
withdrawal order.
    You said ``empower the miners'' to report and to point out 
these violations. Simple question, Are union mines safer than 
nonunion mines?
    Mr. Main. Well, I think that if there are worker 
representatives at mines, and those representatives have a 
chance to freely exercise that right, that Congress gave them 
under 103(f), and if they're traveling with those inspectors 
during that process, there's absolutely no thought in my mind, 
otherwise, that those mines have to be safer. Where the mine 
operator allows their workers to have a voice in safety, and 
freely exercise that, I think, are safer mines.
    Senator Brown. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Brown.
    Senator Murray.

                      Statement of Senator Murray

    Senator Murray. Mr. Chairman, I want to thank you for 
having this hearing to recognize the men and women who we have 
lost on the job, and to talk about how we can make our 
workplaces more safe and healthy.
    I want to express my sincere sympathy to all of the 
families that are here in this room, and, really, thousands 
across the country.
    Two days ago I was in Anacortes, WA, where over 1,000 
people from the community came to a memorial service for the 
seven men and women who died in the tragic refinery fire on 
April 2d at the Tesoro Refinery: Dan Aldridge, Matt Bowen, 
Donna Van Dreumel, Matt Gumbel, Darrin Hoines, Lew Janz, and 
Kathryn Powell. It was an overwhelming event, and I know that 
all the families here are suffering terribly. I just want to 
say, to all in this room and to the other room--in the overflow 
room--I really respect your courage in being here, because I 
know that nothing we can do can bring back your loved one, but 
your courage and conviction in coming here today, and being in 
the audience, helps us really push hard to do the right thing 
so this won't happen again. I just personally want to thank all 
the families that are here today.
    Mr. Chairman, I have some questions for the panel coming up 
on OSHA, regarding the Tesoro Refinery, but I do want to ask 
Mr. Main, we've worked long and hard on these mining issues, 
and it's so troubling that we just can't seem to get there. I 
noticed, on April 22d, an article in the New York Times 
entitled, ``Two Mines Show How Safety Practices Vary Widely.'' 
It outlined the safety culture at two separate nonunion mining 
operations, one at TECO Coal and one at the Upper Big Branch, 
that were operated by a subsidiary of Massey. The article 
referenced a Federal mine inspector by the name of Daniel 
Woods, saying that Massey mines were some of the most difficult 
mines to handle. And he said:

          ``Inspections that should have taken a day, took 
        three, because the first day would be spent arguing 
        with Massey operators over paperwork and permission to 
        enter certain sections of the mine.''

    Do MSHA inspectors require the mine operator's permission 
to go into a mine?
    Mr. Main. No.
    Senator Murray. So, what is the barrier for an inspector to 
get into a mine?
    Mr. Main. I'm not sure what happened on this particular 
case. Having been out on inspections in my lifetime, I know 
there are different ways that mine operators deal with 
inspections. Some of them work with the process, work with the 
inspectors. Some use tactics to just delay an inspection 
process.
    There are times when inspectors have to take extraordinary 
action to enforce their right to go to the mines. That does not 
happen very often. I think, in most cases, what happens is, the 
inspector goes through their normal process of doing mine 
inspections.
    What's raised here--and if you couple what was raised in 
that situation with what we found in three recent inspections 
that we just reported on today, I think you get some ideas 
about how--and even that story--I heard a little bit about it, 
didn't read it all--but how some mines set up their operations 
to normally flow with the compliance to the law, and others do 
not. We'll have to look into more details of that. But, I could 
appreciate why an inspector may have had some difficulties.
    Senator Murray. I think we need to understand that. We need 
to know if there's something we can do in the law to make sure 
that inspectors get in.
    Now, in your written testimony you talk about how Massey 
Energy employed a popular tactic of contesting a large number 
of citations. How does that tactic help operators avoid a 
pattern of violations?
    Mr. Main. Real simply, this. For the cost of a postage 
stamp, they can file a request to contest a violation. That 
violation goes into a process to be adjudicated. Right now, we 
have a 16,000 case backlog, we have years to resolve those 
backlogs. Until those particular violations are finalized by 
the court system, by the judicial system, they can't be counted 
as part of the operator's history.
    Senator Murray. Is there an increased penalty for contested 
violations?
    Mr. Main. No.
    Senator Murray. Well, is there any disincentive for 
operators to file?
    Mr. Main. One of the things we're looking at is creating 
some disincentives--a fair disincentive for those operators who 
do try to game the system. There has to be some process, at the 
end of the day, as all of these issues get resolved, to deal 
with that. Currently, no, there's not.
    Senator Murray. OK. I appreciate that.
    My time's up. Thank you, Mr. Chairman.
                                ------                                

                                            TESORO,
                                     San Antonio, TX 78259,
                                                       May 5, 2010.
Hon. Patty Murray,
U.S. Senate,
Washington, DC 20510.
    Dear Senator Murray: With this letter, and on behalf of the Tesoro 
Companies, I am requesting that the attached materials be included in 
the formal record for the hearing, ``Putting Safety First: 
Strengthening Enforcement and Creating A Culture of Compliance at Mines 
and Other Dangerous Workplaces,'' held on April 27, 2010 by the U.S. 
Senate Committee on Health, Education, Labor, and Pensions.
    Tesoro is making this request because a reference to an incident 
at, as well as the safety history record of, our refinery in Anacortes, 
WA, was made during the course of said hearing. Tesoro believes that 
the materials contained in the attached two documents provide the 
committee with a more comprehensive treatment of the issues that were 
raised during the hearing.
    Thank you in advance for your consideration of this request.
            Sincerely,
                                          Lynn D. Westfall,
                                                   Chief Economist,
                        Senior Vice President for External Affairs.
                                 ______
                                 
                              ATTACHMENTS
                            refinery safety
    The Facts from OSHA data:

    1. The rate of safety incidents in the refining industry is 83 
percent better than the rate for general industry.
    2. Since 2005, the refining industry has reduced its incident rate 
by 36 percent versus just 9 percent for general industry.
    3. The 2009 incident rate for the Anacortes refinery is 18 percent 
better than the latest average rate for the refining industry as a 
whole.
    4. The Anacortes refinery reduced its incident rate by 63 percent 
between 2008 and 2009.
    5. In the last 2 years, employees at the Anacortes refinery have 
worked over 1.3 milk hours and recorded only seven reportable 
incidents, ranging from a strained back requiring physical therapy to a 
lacerated finger that required four stitches.

    The Anacortes refinery has received or will receive the following 
safety awards from the National Petrochemicals and Refiners 
Association:

    1. 2006: Meritorious Award for low incident rates;
    2. 2007: Meritorious Award for low incident rate;
    3. 2007: Achievement Award for 2 years without a lost time 
accident;
    4. 2007: Achievement Award for over 1.5 million man-hours without a 
lost time accident;
    5. 2009: Meritorious Award for low incident rate; and
    6. 2009: Gold Award for a 25 percent or greater reduction in 
incident rates over the last 3 year.
                  anacortes refinery safety violations
    The Facts:

    1. While the initial investigation resulted in 17 alleged 
violations, L&I subsequently agreed to withdraw 14 of the citations and 
reduce the fine to $12,250.
    2. Of the remaining three citations, two have been corrected and 
one will be corrected by the end of the year.
    3. We also agreed with L&I to have a third party review nine 
related areas of concern. The company that was hired completed their 
review in March but has not yet issued their report.
    4. Of 52 similar investigations carried out at refineries across 
the United States, the average number of initial violations is 17.4 per 
facility and the average penalty is $98,300.

         The range of the number of alleged violations has been 
        from 1 to 56.
         The range in the initial fines has been from $1,125 to 
        $3,042,000.

Source: OSHA database
                                 ______
                                 
    The Chairman. Senator Murray, you just put your finger on 
it. That's how they do it. They just get these huge backlogs; 
and, until they get a final adjudication, MSHA can't do 
anything.
    Senator Murray. Well, and I would say--16,000 of them--
obviously, what we're doing is just delaying the safety of our 
mine workers.
    Mr. Main. Yes. It can----
    The Chairman. Senator Bennet's not here.
    Mr. Main [continuing]. Hold them up for----
    The Chairman. Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Thank you, Mr. Chairman.
    I'd like to associate myself with Senator Murray's remarks, 
and address myself to the families, and thank them for being 
here to bear witness and to make sure that this doesn't happen 
to other miners and other families.
    I think anyone who reads your testimony about the number 
and nature of the violations by Upper Big Branch Mine and by 
Massey would be shocked. I'm wondering, is there something 
wrong with the law here? Is there something wrong with the 
culture here? I assume there's no love lost between MSHA and 
Massey.
    You say that these mines have stayed open, have been held 
open because of the way the law has been interpreted. My 
question is, by whom? I mean, even when there's been dust and 
violations in ventilation and gas leaks, these are all the 
things that we suspect caused this explosion. Well, who--the 
way the law has been interpreted--has kept these mines open, 
this mine open, even in the face of all these violations. Who 
interpreted the law that way to allow these mines to stay open?
    Mr. Main. There's different litigation events that's 
happened over the years that has led to the current application 
of the Mine law, for one. The Federal Mine Safety and Health 
Review Commission deals with the resolution of enforcement 
actions that MSHA takes, citations they issue, orders they 
issue. A lot of the historical application of the law has been 
developed through the Review Commission. That's one of the 
reasons that we think we need to take a look at some of the 
provisions that are the center of the universe for limiting 
MSHA's inspectors' ability to use some of these. One of them I 
just pointed to earlier was this notion that a permissibility 
violation, where you have a piece of equipment that has a gap 
in it that a spark could escape from--it just takes a little 
spark to blow up a coal mine in a gassy mine--has to go to an 
extraordinary step, almost an explosion, before you can 
consider that serious, under the--I mean, that's the way----
    Senator Franken. I'm sorry, but you're saying that this is 
in courts and----
    Mr. Main. This is in----
    Senator Franken [continuing]. Litigation?
    Mr. Main. Yes, there's been litigation, over the years, 
that has refined the definitions of the applications of law.
    Senator Franken. And these are judges? Federal judges? 
Who's making----
    Mr. Main. Federal Review Commission.
    Senator Franken. Federal Review Commission.
    Mr. Main. Yes. There are a couple areas that we are looking 
at for some relief, which we may be well looking at 
legislatively, and that's some of the things we want to have a 
chance to discuss with the committee. One of them is redefining 
this Significant and Substantial issue. Another is unwarnable 
failure, where there's an unwarnable failure on the part of the 
mine operator to address a safety condition. Those, over the 
years, based on my view--and, I think, the view of others--have 
been constrained to the point that--if you look at the S&S rate 
nationally, it's about a third of the violations. If you went 
back during a period of when--about 1980, you are looking at 
about 80 percent of the violations being S&S. Now, I'm not 
saying that that's where they should land at, but I'm just 
saying, over the years, that's where the application of those 
have settled. To change that, we need to change the definitions 
that are used to identify which standards are serious and which 
are not.
    There are a number of things that we have, Mr. Chairman and 
Senator, on the table to take a look at, here, as we move 
forward, in trying to figure out what all reforms that really 
need to be----
    Senator Franken. Maybe there are definitions of what--
what's S&S? Serious----
    Mr. Main. Significant----
    Senator Franken [continuing]. And Substantial?
    Mr. Main [continuing]. And Substantial. And it----
    Senator Franken. Yes.
    Mr. Main [continuing]. Drives Unwarnable Failure violations 
and orders. It drives the Pattern of Violations process, 
because, to be able to cite either one of those, it has to be 
significant and substantial.
    Senator Franken. Well, I know we have three other panels. I 
had another question that I'll submit to you, on--you say you 
want the miners to be empowered. There are miner representative 
systems, where miners can participate in this, but only 2 
percent of the mines, say, in Kentucky, have that. And I wanted 
to know why. I'll submit that in writing for you, sir.
    Mr. Main. OK. Thank you.
    Senator Franken. Thank you Secretary Main.
    Mr. Chairman.
    The Chairman. Thank you.
    We have been joined by our Ranking Member, Senator Enzi.
    Senator Enzi.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman.
    I appreciate Senator Isakson standing in as the Ranking 
Member for me. And I appreciate you putting my statement in the 
record.
    The Upper Big Branch Mine is the worst accident in 40 
years, and 29 people lost their lives. I know that the families 
and communities are hurting. and I appreciate those of you who 
are here. Our sympathies go out to you.
    As you may know, I represent another coal mining State. 
Being able to safely mine our natural resources and enjoy the 
economic benefits of the industry is as important to the people 
of Wyoming as it is to the ones of West Virginia. That's why I 
worked with Senator Rockefeller and Senator Byrd, along with 
Senators Kennedy and Isakson, to write that MINER Act, in 2006, 
in response to the string of tragedies that occurred that year. 
It's very frustrating, for those of us who worked so hard on 
the MINER Act, to hear accounts of MSHA's activity at this 
mine.
    MSHA found over 500 violations in 2009, over 100 violations 
so far in the current year, and a significant amount of them 
were unwarranted failures. In the last 2 years, MSHA issued 
over 60 orders to withdraw miners from the UBB site, because of 
hazardous conditions. MSHA inspectors spent 180 days there in 
2009, yet no one from the Regional Mine Office followed up to 
ensure that the UBB was placed on a Potential Pattern of 
Violation status in October 2009, as it should have been. Back 
in 2007, UBB was appropriately placed on a Potential Pattern of 
Violations status, and they moved quickly to reduce and improve 
its safety record to avoid being on that status. Now, compared 
to 2007, MSHA has a larger budget, more inspectors, and new 
leadership, partly because of the MINER Act.
    I will submit a series of questions that deal with this.
     I won't take up more time now, knowing that we have three 
more panels to go, and other important questions.
    I thank Senator Rockefeller for all of the action that he 
helped us to take 4 years ago with the Miner Act. I think it's 
one of the fastest times that we've ever passed a law in 
Congress. We addressed a lot of the issues that came to our 
attention from the Sago and Aracoma accidents. I know, from the 
oversight hearings that we held after that, that we did do a 
lot of those things. We do expect agencies to report to us when 
they find something that isn't covered by the law, that needs 
to be covered by the law.
    I'll have followup questions to dig into that a little bit 
deeper.
    Thank you for being here today.

                   Prepared Statement of Senator Enzi

    Good morning. I want to thank Chairman Harkin for 
scheduling today's hearing. Two recent tragedies have focused 
the country on the important topic of workplace safety, one the 
most important missions of the HELP Committee. As a Senator 
from a State whose primary industry is energy production, my 
heart goes out to the families and communities that lost those 
hard-working Americans this month. The work they do benefits 
every single one of us and underpins our entire economy, and we 
appreciate it though too few of us ever let them know. Perhaps 
out of the tragic accidents that have taken the lives of 29 men 
in West Virginia, 7 in Senator Murray's home State of 
Washington and left 11 missing off the coast of Louisiana, we 
can build a new commitment to keeping workplaces safe.
    Although these mass accidents capture the media's attention 
until the next story comes along, the truth is that men and 
women lose their lives nearly every day in workplace incidents, 
some of them heartbreakingly senseless. Congress created the 
Occupational Safety and Health Administration in 1970 and the 
Mine Health and Safety Administration in 1977 to have a 
singular focus on making workplaces safer. Since then more 
Federal agencies have been established to further this cause: 
the National Institute of Occupational Safety and Health 
(NIOSH), the Chemical Safety Board and other more specialized 
agencies. Despite the recent tragedies, workplace injuries and 
deaths have, in fact, shown a long-term downward trend.
    The most recent BLS data for 2008 indicates the lowest 
annual number of workplace fatalities since recordkeeping began 
in 1992. Concentrated efforts to focus on minority groups that 
had traditionally higher rates seem to be paying off, as well. 
In 2008, deaths among Hispanic workers were down 14 percent and 
deaths among African-American workers down 12 percent. Injury 
rates have shown a similar drop. Since 1994, the total case 
rate has declined by 50 percent; and, the lost-days-away-from-
work rate has declined by 44 percent. Mining accidents, too, 
have seen a long-term downward trend and last year was the 
safest on record, though this month's tragedy makes that fact 
difficult to recognize.
    This progress is certainly encouraging, but it should not 
cause anyone to become complacent. The number of work-related 
deaths and injuries still remains unacceptably high. Workplace 
injuries continue to bring hardship to employees and their 
families and burden our economy. All of us involved in this 
issue must continue our effort to make our Nation's workers and 
workplaces safer.
    We owe it to those whose workplace accidents were not 
prevented to analyze why not, and learn what can be done 
better. There is no doubt that after an accident, a workplace 
will receive a great deal of regulatory attention, but I want 
to look for ways to reach the workplace before anything goes 
wrong and prevent accidents. One undeniable fact is that 
enforcement alone cannot ensure the safety of America's 
workforce. Simple mathematics show the shortcomings of an 
inspect-and-sanction system. With less than 2,400 OSHA 
employees, more than 7 million workplaces, and inspectors 
averaging around 40 inspections a year, it is clear that most 
workplaces will never see an OSHA inspector until it is too 
late.
    If we truly want to continue to improve workplace safety we 
need to think creatively; and, to fashion policies aimed at 
getting results. One shining example of creative thinking that 
has proven to make workplaces safer was recently placed on the 
chopping block by the Department of Labor. No program has been 
more successful in creating such a culture of safety in the 
workplace than the Voluntary Protection Programs, or VPP. Since 
it was created in 1982, Republican and Democrat administrations 
alike have fostered its growth to now 2,284 worksites, a 
quarter of which are unionized, covering almost 1 million 
employees.
    The results speak for themselves. VPP worksites have an 
average Days Away Restricted or Transferred (DART) case rate of 
52 percent below the average for their industry. And it isn't 
just large worksites. In recent years, smaller worksites have 
made significant strides in VPP, increasing from 28 percent of 
VPP sites in 2003 to 39 percent in 2008. One of today's 
witnesses, Kelli Heflin, is the safety manager of a 65-employee 
Colorado company that has seen a decrease from 13 annual 
injuries to zero since it joined VPP.
    VPP works because it creates a culture of safety at 
worksites and builds a partnership between management and 
employees. At a VPP worksite, safety is truly everyone's 
responsibility. Participants also have access to a network of 
safety experts and years of experience solving safety problems.
    The benefits of VPP extend beyond making workplaces safer. 
It also saves money in two direct ways. First, VPP participants 
save money by avoiding injuries. In 2007, Federal Agency VPP 
participants saved the government more than $59 million and 
private sector VPP participants saved more than $300 million. 
Additionally, taxpayers get more for their dollar when 
workplaces make the significant commitment to safety required 
by VPP because it allows OSHA to focus its resources where they 
are most needed.
    VPP Participant employers are extremely proud of the strong 
safety record these partnerships have enabled them to achieve. 
They contribute a great deal to reducing the VPP program 
expenditures. VPP participants have assigned approximately 
1,200 of their own employees to act as OSHA Special Government 
Employees (SGEs) who conduct onsite evaluations for OSHA.
    I was very surprised when the Administration's Budget 
Request proposed eliminating the small amount it takes to 
administer VPP--$3.125 million and sought to transfer the 35 
FTE it takes to run the program to other functions. Throughout 
Dr. Michaels confirmation process I and other members of this 
committee asked about his commitment to compliance assistance 
and the VPP program specifically, and were repeatedly assured 
that he ``recognized their great value'' and would ``continue 
to support'' VPP and work with this committee to do so. 
Instead, the budget proposed cutting all funding, and 
transferring away all staff. Equally disturbing was the fact 
that despite all of the assurances, this action was taken 
without any outreach to the Republican Members of this 
committee, many of whom repeatedly expressed their support for 
VPP.
    The budget proposal stated that OSHA was seeking 
``alternative non-Federal forms of funding'' and working 
closely with stakeholders, but, to date, no plan to secure such 
funding has been offered by the Administration or in either the 
House or Senate authorizing committee. To the extent such 
``alternative funding'' is bureaucratic code for a fee-based 
system such a proposal is simply not workable and completely 
counterproductive. Participating employers already voluntarily 
absorb significant costs to participate in the current program. 
Asking businesses--particularly small businesses, and 
particularly in the current economic environment--to take on 
more costs will only result in them dropping out of the 
program. Further still, a fee-based system simply destroys the 
credibility and integrity of VPP participation for employees.
    This half-baked plan to defund VPP was unanimously rejected 
by the Senate Budget Committee last week, and I suspect a 
similar rejection may come via Appropriators. I hope the 
Department will consider itself on notice that the Senate 
supports innovative, cost-effective approaches to improve 
workplace safety, and we do not want to see programs that are 
working, like VPP, diminished. Senator Landrieu and I 
introduced legislation yesterday that will codify the program, 
expand it to include more small businesses and incorporate 
improvements suggested by a recent GAO report. I look forward 
to working that legislation through the committee this year.
    Whether in a coal mine, an oil field or a shoe store, 
improving workplace safety has been an issue of longstanding 
concern to me. From my days as a small businessman, to my 
service in the Wyoming State Legislature, and now, in my 
service in the Senate, I have been very supportive of 
innovative efforts to increase workplace safety--especially for 
small businesses without the resources to have in-house safety 
experts. Although we sometimes disagree on the way to get 
there, we all agree that zero accidents is where we'd like to 
get.
    Finally, I know that this hearing was originally scheduled 
to coincide with Workers Memorial Day. I certainly join the 
rest of the committee in honoring all the lives that have been 
lost in workplace accidents, in the recent mass accidents and 
every other accident. On this day, it is appropriate to 
remember those who have been lost, and to recommit to the 
mission of improving workplace safety. By looking seriously at 
the whole issue--and making no subject off limits--we can pay 
them the best tribute of real progress in reducing workplace 
fatalities.
    The Chairman. Mr. Main, thank you very much for being here, 
thanks for your leadership in this issue. We'll followup on 
that 818(a).
    And please thank Secretary Solis----
    Mr. Main. Will do.
    The Chairman [continuing]. For her help on this, and for 
her great interest in moving this forward. We've talked on 
that, on a couple of occasions, and I know she wants to get to 
the bottom of this and change things, too. So, thank her on our 
behalf.
    Thank you very much, Mr. Main.
    Mr. Main. Thank you.
    The Chairman. Now we call panel two.
    Panel No. 2, Mr. Cecil Roberts. Mr. Roberts has been 
president of the United Mine Workers of America since 1995. 
He's a sixth-generation coal miner, who's devoted his career to 
advocating for better treatment for miners. Mr. Roberts 
graduated from West Virginia Technical College in 1987, 
received an honorary doctorate in humanities from West Virginia 
University of Technology in 1997.
    Then we have Mr. Jeff Harris. Mr. Harris is a third-
generation miner. He has been working in mines in West Virginia 
for more than 30 years. He is currently employed at the Harris 
No. 1 Mine in Boone County, WVA, where he works as a roof 
bolter who pins the underground roof of the mines to keep it 
safe.
    Next, we have Mr. Wes Addington. Mr. Addington is deputy 
director of the Appalachian Citizens Law Center, a nonprofit 
law firm that fights for justice in the coal fields by 
representing coal miners and their families on the issues of 
black lung and mine safety. He is also director of the Center's 
Mine Safety Project. Mr. Addington earned his undergraduate and 
law degrees from the University of Kentucky.
    Last we have Mr. Bruce Watzman. Mr. Watzman is National 
Mining Association's senior vice president for regulatory 
affairs. His responsibilities include working with member 
companies on the design of safety and health programs for use 
in the mines, and with Federal and State regulators, on the 
management on safety and health programs. He also serves on the 
executive committee of the mining section of the National 
Safety Council, and on various planning and advisory committees 
for MSHA and the National Institute of Occupational Safety and 
Health. Before joining the NMA, Mr. Watzman was a legislative 
assistant to Representative Nick Rahall, of West Virginia.
    Welcome, all of you, and thank you for being here. I thank 
you for your patience, as I will thank the next two panels.
    Your statements will be made a part of the record in their 
entirety. I would appreciate it if you could sum it up in 5 
minutes so we could engage in some rounds of questions.
    Mr. Roberts, we'll start with you. Welcome back to this 
committee. You are no stranger to us, nor a stranger to this 
committee. I know what you've been going through over the last 
several weeks, too, so thank you for being here, Cecil.

STATEMENT OF CECIL E. ROBERTS, PRESIDENT, UNITED MINE WORKERS, 
                          TRIANGLE, VA

    Mr. Roberts. Thank you very much, Mr. Chairman.
    I want to thank you for holding the hearing today. I want 
to thank this committee for the work you did in 2006. I want to 
thank you for the compassion that you've shown over the years 
to coal miners, particularly those involved in tragedies. We're 
very thankful for legislation that was passed in 2006.
    I want to thank my friend Senator Rockefeller, also, for 
his lifelong commitment to keeping coal mines safe, not only in 
West Virginia, but across this Nation.
    I want to thank Senator Byrd for his hard work, for many, 
many years, on this particular issue; our friend Nick Rahall, 
who is here today, and thank him, not only in this instance, 
but for many years of hard work and dedication to coal miners 
of this Nation.
    I want to also recognize the family members who are here 
today. Someone mentioned the Handler family. They are here, as 
well as others from Sago and other disasters across this 
country. What we hope, and what my prayer is, is that I never 
have to do this again the rest of my life.
    Someone asked me, Senator Rockefeller, as I entered the 
memorial service on Sunday, ``What do you hope to come of 
this?'' I said, ``I hope this is my last one.''
    These were Massey employees, in a nonunion mine, but I want 
to tell you, they were my friends, they were my neighbors. I've 
known some of them--the Davis family, in particular--all my 
life. And I've got to tell you, it's the most emotional thing I 
think I've been through for a while. And I apologize for that.
    As we come today, I want to point out, this is five of 
these tragedies in the last 4 years. All of these tragedies are 
preventable.
    I want to say something here, that I firmly believe in my 
heart, that this tragedy should never have occurred at Upper 
Big Branch. The only way it occurred, the law that you wrote 
was violated. If they had been in compliance with the laws that 
Congress had written in 1969, updated in 1977, updated in 2006, 
it would have been impossible for this tragedy to have 
occurred.
    I want to point out one other thing--and I'm going to talk 
about MSHA myself here momentarily, but we've avoided one 
thing. Why is it that we have operators, in this Nation, that 
will practice this kind of mining? We have had coal companies 
on Coal River, Senator Rockefeller, in that area, in Logan 
County, for 100 years. I defy anyone to go back and see where 
Peabody had a tragedy like this, where Armco had a tragedy like 
this, where Bethlehem had a tragedy like this--it never 
happened. Why is it that this particular company has had two of 
these--two of these--tragedies, at Aracoma and now Upper Big 
Branch?
    I want to report something, so all of you can understand 
something. These miners who work at Massey are scared to death. 
They're intimidated. This company is run like it was 1921, not 
like it's the present day. That's the truth. You don't have to 
take my word for this. Not only are the miners intimidated, but 
the communities are intimidated. I can tell you one thing, the 
communities and the people in West Virginia have had enough of 
this, and they're about ready to stand up and take a position, 
here.
    My position is that, when you talk about criminal 
prosecution, here, now's the time, because the people who knew 
that this was going on--there's no question in my mind that the 
people at the very top here, and the board of directors, knew 
that this mine was in this kind of shape. This owner of this 
company, this president and CEO, he doesn't live 1,000 miles 
away. He lives right in the heart of the coal fields, checks on 
these mines every single day. Fear and intimidation is the rule 
there.
    Let me tell you, we have to understand, when we have people 
like this--I think we should hold the Federal Government and 
MSHA responsible, here; but, I must say to you, How is it that 
a company can be allowed, in this day and age, to put people in 
this kind of a position? Congress should stand up and take a 
position that we're not going to tolerate this. This is the 
United States of America. This is not China, and this is not 
Colombia, this is America we're living in.
    A young man of 28, 5 years ago, wrote his mother and his 
fiance a letter--he has a young baby, which I happened to meet 
on Sunday--and said, ``If I die in this coal mine, please tell 
everyone that I love them.'' That's the kind of letter people 
used to write when they went off to Vietnam, in my era. That's 
the kind of letter people used to write to go to Iraq and off 
to war. That's the kind of letter young men write. That's not 
the kind of letter they're supposed to write when they get 
their dinner bucket and go to work in the United States of 
America.
    There are some things MSHA can do, and Joe Main mentioned 
some of them. I am proud to say to you that I thank President 
Obama for putting a coal miner in charge of this agency, 
instead of a coal executive, for the first time in the history 
of this country. I submit to you, you can hold Joe accountable, 
and you should, but it's not going to be long that the coal 
industry's going to be in here saying, ``He's too tough on 
us.'' I'm putting you on notice that that's what's going to 
happen. Because he's going to enforce the law, MSHA's going to 
enforce the law, and coal miners are going to be safer for 
this.
    I am, today, sending a letter to Joe Main, I'm sending a 
letter to Hilda Solis. It's time for us to have a public 
hearing on this situation in the State of West Virginia. 
Because they do have subpoena powers whenever they have a 
public hearing. Let's put everyone at--that had anything to do 
with this tragedy up where the families can come--by the way, 
families are excluded from these investigations, when they have 
them in private; but, if you have a public hearing, the 
families, who are the most affected by what happened here, they 
can come, subpoena powers can be issued, and put somebody in 
jail if they lie.
    I know I've gone over my time. I know I'm emotional about 
this, but I invite all of you to take the records of this coal 
company--this is not the worst mine they have. This is the 
fourth-worst mine they have. There are three others in worse 
shape than this one.
    I'm sorry, and I got carried away, but I must tell you how 
I feel about this today.
    Thank you.
    [The prepared statement of Mr. Roberts follows:]
                 Prepared Statement of Cecil E. Roberts
    Thank you for allowing us to address this committee. As President 
of the United Mine Workers of America (``UMWA''), I represent the union 
that has been an unwavering advocate for miners' health and safety for 
120 years.
    This committee has played an important role in addressing 
employees' health and safety. I would like to express my particular 
appreciation to the leadership of this committee for your efforts 
directed at protecting and enhancing the health and safety of coal 
miners throughout the Nation. Your continued attention is critical to 
dealing with the challenges that all too often prevent some miners from 
being able to go home safely at the end of their shift. After all, 
going to work, whether as a coal miner or other worker, should be a 
means for earning a paycheck and providing for your family, not a roll 
of the dice about whether you will live to see another day.
    Yet, for too many American workers, the price of a job has been the 
employee's life. Earlier this month 29 brave coal miners perished at 
Massey's Upper Big Branch mine, and one more remains hospitalized as I 
prepared this statement. Our hearts and prayers go out to all the 
families who have lost their loved ones as well as with the family 
sitting by the hospital bed of the injured miner. We know the entire 
community has been devastated by this tragedy.
    We also share the grief of the families of workers killed at the 
Tesoro Refinery days before the Upper Big Branch mine exploded, those 
missing after the gas rig fire just last week in the Gulf of Mexico, 
and the thousands of other workers killed in the last year due to 
atrocious health and safety conditions at work. Tomorrow is Workers' 
Memorial Day to remember and honor those who have died from their work. 
We are glad to have this opportunity to discuss how our government can 
do a better job to protect our Nation's workers from unsafe and 
unhealthy work places.
    Statistics from the mining industry offer dramatic proof that 
improved laws and regulations make a huge difference in workers' 
safety. We recently celebrated the 40th anniversary of the mining 
industry's key legislation, the Coal and Mine Acts. In the 40 years 
before that landmark legislation, an average of 809 miners were killed 
in coal mines each year; and in the 40 years since it was enacted an 
average of 83 miners were killed.
    While these numbers prove beyond a doubt that strong laws make a 
huge difference, more must be done. We are here today to talk about 
what could and should be done to change a system that still allows 
miners and other workers to die at work or from their work, whether 
from preventable occupational illnesses or from avoidable work-site 
tragedies.
    Today we were asked to focus on problems the government faces when 
dealing with employers that repeatedly fail or refuse to heed their 
duty to obey workplace safety laws and regulations. Unless operators do 
what the law requires of them, and do so each and every day--not just 
when a government inspector is physically on site--miners will continue 
to be exposed to needless hazards to their health and safety, too many 
will be injured, too many will be made sick, and too many will pay the 
ultimate price with their life.
    These challenges have persisted for decades, if not longer. I have 
been here repeatedly, and my predecessors before me, to complain about 
the terrible conditions miners endure when operators don't follow the 
law and miners are killed as a result. I also have testified about 
problems that follow when there's an MSHA governed by industry 
executives.
    I thank President Obama for naming an Assistant Secretary who is a 
coal miner and who knows the industry through the eyes of a miner. In 
fact, the President and Vice President have shown an unparalleled 
interest and commitment to the problems still plaguing mine safety, for 
which we are deeply appreciative.
    Turning to the factors that adversely impact miners' health and 
safety, we must start by looking at the operators and their mines. 
First and foremost, it is every operator's responsibility to provide a 
safe and healthful workplace. Yet, we know corners are frequently cut, 
which means that miners' health and safety gets sacrificed.
    It is time to hold CEOs and corporate Boards of Directors 
accountable when the facts reveal systematic problems with health and 
safety compliance. It is not enough to issue fines or levy charges 
against low-level managers who violate the law when they are doing what 
their supervisors direct and expect. There is something dreadfully 
wrong when corporate executives are eager to speak about their 
productivity and profits, but reluctant to consider the cost to their 
workers.
    In the last 10 years, 52 miners were killed working for Massey. 
This happened while Massey's CEO, Don Blankenship, has been paid 
millions upon millions each year; since 2003 Don Blankenship has been 
compensated by more than $5 million each year, and he made over $28 
million in just 1 year! Last year he earned over $17 million. These 
figures include significant ``performance'' awards and don't even 
include the stock options he was also given. This is terribly wrong.
    This brings me to the primary question we were asked to address 
today, which is: What can be done to prevent recalcitrant employers 
from violating the law and jeopardizing their employees' health and 
safety?
    While we appreciate and rely upon the work of MSHA personnel who 
inspect mines, review mining plans, and perform other critical 
functions dedicated to miners' health and safety, MSHA can and should 
be more pro-active and effective in using all the enforcement tools 
Congress provided in the Mine Act. The enhanced penalty structure that 
came out of the 2006 MINER Act has been turned on its head by an 
industry challenging so many citations that cases are backlogged for 
years; its Pattern of Violation enforcement tool--in the law since the 
1977 Act but untouched until a few years ago is burdened by a 
regulatory framework that completely frustrates Congress's intent; and 
the opportunity to seek injunctive relief is a tool that has not been 
utilized, but is available and could offer the swift and effective 
relief needed when a mine demonstrates a pattern of unsafe conditions.
    In the MINER Act, Congress directed that higher fines should apply 
to MSHA violations. However, since the higher penalties took effect, 
many operators including Massey, began routinely challenging MSHA 
citations and orders thereby clogging the adjudicative process and 
delaying the resolution of alleged violations. Yet, until there is a 
``final order,'' the operator doesn't have to pay a penny towards the 
fine. By way of example, Massey has been assessed with fines amounting 
to $1.1 million since January 2009 for its alleged violations at Upper 
Big Branch; very little of these penalties have been paid because the 
company has filed ``contests'' and they remain caught up in the FMSHRC 
backlog.
    Since the MINER Act took effect in 2006, the docket of the Federal 
Mine Safety and Health Review Commission (FMSHRC) has mushroomed. Its 
backlog is well over 16,000 cases, of which 9,000 new cases were added 
in fiscal year 2009, alone; compare this to the 2,700 cases filed in 
fiscal year 2006. Cases entering the system now will likely take at 
least 2 or 3 years to be resolved. The problem of delayed payments was 
a problem Congress tried to fix in 1977 in the Mine Act:

          ``The committee firmly believes that to effectively induce 
        compliance, the penalty must be paid by the operator in 
        reasonably close time proximity to the occurrence of the 
        underlying violation.''

    Leg. Hist., Senate Report at 604. Unfortunately, the penalty scheme 
is broken again; not only is there delay in the payment of any 
assessments but the increased penalty structure Congress implemented 
through the MINER Act has not lead to the intended improvement in 
operator compliance.
    The reality is that as it stands now, operators have every 
incentive to file contests and take appeals to the FMSHRC, because MSHA 
and the FMSHRC routinely compromise their fines to settle cases. 
Assessed penalties are reduced by about 47 percent when they are 
contested. We believe this system has to change: MSHA needs to do a 
better job supporting the citations its inspectors write by allowing 
inspectors to defend their work, and providing MSHA with help from the 
Solicitor's office so the Agency can determine which cases to pursue 
and which ones to settle, which should be decided based on the merits 
of a case, not expediency.
    The delay in resolving MSHA litigation is important for a number of 
reasons, one of which pertains to the amount of fines an operator has 
to pay based on its ``history of previous violations.'' Under the Mine 
Act, Congress directed MSHA to consider an operator's ``history of 
previous violations'' when figuring the fine for health and safety 
violations. MSHA's regulation (at 30 CFR Part 100) provides that when 
an operator engages in repeated violations of the same standard, 
penalties should increase. Yet, until there's a ``final order,'' the 
citation is excluded from MSHA's calculations about the operator's 
history of violations; and MSHA's penalty structure considers only 
final orders from the preceding 15 months.
    With operators like Massey routinely contesting their S&S 
citations, the increased penalties intended for repeat violations have 
been effectively eliminated. In other words, Congress's directive that 
MSHA consider the operator's history of previous violations no longer 
has any role in the enforcement scheme.
    Another adverse effect of the litigation backlog arises with the 
``pattern of violation'' (POV) tool that Congress gave MSHA in Section 
104(e) of the Mine Act. Like with the history of violations provision, 
MSHA's regulation requires it to consider only ``final'' citations and 
orders. The POV mechanism was Congress's suggested means for dealing 
with habitual violators: after the Scotia mine exploded in 1976 and 
Congress enacted the Mine Act in 1977, it developed the POV language to 
allow MSHA to move against operators that have a lot of S&S violations 
and show little in the way of improved compliance, or operators that 
experience a worsening trend of S&S violations indicating a greater 
than normal risk of disaster. The legislative history shows Congress 
intended the POV criteria to be flexible, so that it could consider 
both quantitative and qualitative factors. However, the regulation MSHA 
finally promulgated in 1990 is unnecessarily complex. By having such a 
complex structure, MSHA tied itself up with bureaucratic hurdles that 
reduced the flexibility Congress clearly intended it to maintain. As 
you know, MSHA didn't ever use the POV until after the 2006 disasters 
and it was called before Congress to answer about its lax enforcement 
efforts.
    As written, the POV regulation requires MSHA to give the operator a 
written warning about it potentially being placed in the POV status 
before the POV will be implemented. Since MSHA began using this tool 
after 2006, Massey mines have received 13 written warnings, more than a 
third of those issued nationwide.
    The rationale for using a warning letter before imposing the POV 
status on a mine is that MSHA's primary goal for the POV is to achieve 
compliance with all applicable health and safety standards, not shut 
down mines. So long as the operator reduces its S&S violations within 
90 days, it is freed of MSHA's more rigorous enforcement. MSHA's 
warning letters certainly get the operators' attention, and MSHA has 
generally been able to effect the requisite short-term corrections from 
operators so they are then freed of the POV threat.
    Clearly MSHA should be able to exercise its POV enforcement 
authority more than it has chosen to do so far. The POV regulation is 
simply too complicated and bureaucratic. We believe MSHA should 
simplify its POV procedures so it can take swift action when the Agency 
observes chronic safety problems at an operation. We want MSHA to be 
able to use this tool to stop unsafe operators from continually placing 
miners in harm's way. When miners lives are what's at stake we believe 
it is far better to err on the side of protecting the miners, even if 
there is some possibility that MSHA might sometime close a mine when a 
lesser remedy might arguably be feasible. We would rather see MSHA shut 
all or part of a mine without having to go through such formal 
procedures, recognizing MSHA's decision to impose a POV would be 
subject to review at the FMSHRC.
    Even though the goal of the POV provision is to reduce violations, 
the reality is that it is still too easy for a law-breaking operator to 
make some temporary fixes simply to escape the POV consequence without 
making the significant, systemic health and safety improvements 
necessary to turn an unsafe operation into a safe one. While we are not 
opposed to having MSHA first put operators on notice that conditions at 
their operation warrant a heightened level of attention and may lead to 
a POV absent quick and significant improvements, any operator that 
receives the warning notice should still be required to operate under 
the improved conditions for a prolonged period--long enough so that 
miners at the operation can see the difference and work under the 
improved conditions, which should then represent the new norm. If an 
operator gets a first warning letter, even if it then improves and 
avoids application of a POV, MSHA should have a system for watching the 
operation to ensure there have been systematic improvements, not just 
temporary fixes to get the government off its back.
    We also note that while MSHA seems to consider only 24 months of 
history when looking at the POV criteria, unlike its regulation on 
fines there is nothing in the POV regulation that requires MSHA to 
limit its review to 24 months' worth of history at an operation when 
considering the heightened enforcement. We suggest the Agency has more 
flexibility than it has claimed and we encourage it to exercise its 
full range of discretion in this regard.
    To make its enforcement tools more effective, we encourage MSHA to 
identify mines that would be subjected to higher penalties for repeat 
violations or for a ``pattern,'' and prepare to litigate those cases 
more quickly, with cooperation from the FMSHRC to give priority 
attention to these cases. Doing this would reduce some of the 
incentives operators now have for filing contests.
    In addition to the POV issues discussed above, we understand MSHA 
has been reluctant to close a mine based on the number or type of 
violations or withdrawal orders; we believe it's authority to do so 
should be clarified. The Agency should be more aggressive in moving to 
shut mines that are dangerous. If an operator makes only short-term, 
band-aid remedies despite systemic safety problems, MSHA should be able 
to move against it. To the extent there is any ambiguity about MSHA's 
authority to close a mine, that uncertainty must be eliminated. MSHA 
should not have to wade through months or years of records of 
violations before moving to shut a dangerous mine.
    Some other suggestions we support include requiring employers to 
pay their penalties into an escrow account, rather than waiting until 
the contest process is completed; eliminating the 15-month limit and 
expanding the look-back period for purposes of considering an 
operator's history of violations; and hiring more ALJs at the FMSHRC, 
and staff within DOL to move cases more quickly and reduce the FMSHRC 
backlog.
    There are also some new powers that would help MSHA to be more 
effective in ensuring miners have a safe and healthful place to work. 
We recommend expanding the Secretary's subpoena power so that it 
resembles that in OSHA. This would give the Agency the authority to 
compel a witness to provide evidence as part of the routine enforcement 
scheme, instead of only as part of a post accident public hearing. We 
also believe it is important to improve the whistleblower protections 
to encourage miners who may know about dangers to come forward. The 
criminal provisions should be enhanced so that MSHA violations can be 
prosecuted as felonies, not only misdemeanors. Also, it should be 
clarified that the criminal penalties apply to those who contribute to 
unlawful conduct; in some cases it should not just be the front line 
supervisors who are held liable, but higher management should be 
accountable for corporate policies that put profits ahead of miners' 
safety and health.
    MSHA should also start factoring in the work of contractors that 
work on mine property when considering the safety record of the owner 
and operator. By treating the operator and its contractor as two 
separate entities, MSHA overlooks data that should reflect on the 
operator's safety record.
    We believe that investigations of the Upper Big Branch tragedy will 
show that safe mining practices were not followed at that operation and 
miners were being exposed to senseless dangers. We already know that 
MSHA issued 515 citations and orders at the Upper Big Branch mine in 
2009, and another 124 so far in 2010; moreover, the paper MSHA issued 
to Upper Big Branch reflects serious health and safety violations: 39 
percent of the 2009 citations were for ``significant and substantial'' 
(``S&S'') violations. These violations are usually quite serious--the 
kind of violations that can contribute to mine fires, explosions and 
the deaths of coal miners. Even more troubling is the fact that MSHA 
issued 48 withdrawal orders at Upper Big Branch due to repeated S&S 
violations the operator knew or should have known constituted a hazard. 
These numbers far exceed industry norms.
    For the Upper Big Branch investigation, we are encouraging MSHA to 
hold public hearings. Doing so would allow the government to subpoena 
witnesses, and would give it the right to question top management. We 
are convinced that the many problems that contributed to the explosion 
at Upper Big Branch did not develop at the foreman or mine supervisor 
level, but reflect corporate policies that should be heard in the open. 
Only by conducting an open hearing will miners, the public, and the 
families of those killed be able to learn what really happened.
    Operators that invest in equipment and training to make a mine 
safer should not have to compete against those that refuse to make 
these needed investments. In the end it's miners who pay the price when 
operators do not adhere to what the law requires. As long as there are 
good paying jobs in mining, there will be workers willing to take the 
work thinking and praying they will be the lucky ones. Working in 
America in the 21st Century should not require such a gamble. And 
unless operators start running their mines consistent with what the law 
requires, we will continue to witness miners dying.
    The Union and coal miners hailed the passage of the MINER Act as 
the dawn of a new day to improving coal mine health and safety. We have 
seen some improvements, but we have a long way to go. MSHA should be 
given more enforcement tools to help it enforce the law. And the law 
should be strengthened further. Thank you for allowing us to address 
this committee, and for your continued commitment to workers' health 
and safety.

    The Chairman. I wish my dad could have met you.
    Mr. Roberts. I wish I could have met your dad.
    The Chairman. Yes, I wish you could have, too. He started 
working in the coal mines underground sometime between 1905 and 
1910--I don't know when--and worked there for 20 years. That 
was before I was born, I want you to know.
    [Laughter.]
    Voice. In Wyoming.
    The Chairman. No. This was Iowa. Iowa was second, once, 
only to Pennsylvania, in the number of coal mines. And 
listening to him, later in life, talk about those early years, 
when they were working in those mines, and what would happen to 
them if they tried to organize a labor union or anything like 
that, just to hear what would happen to them sort of reminds me 
of what you're talking about right now. I would have thought 
that those days were long gone--long gone--back in the Dark 
Ages, someplace like that. I wish he could have met you.
    Mr. Harris, welcome. Please proceed. As I said, your 
statements will be made a part of the record.

           STATEMENT OF JEFFREY HARRIS, MINE WORKER, 
                           FARLEY, WV

    Mr. Harris. Yes.
    I am Jeff Harris, a third-generation coal miner. I've 
worked at the Massey mines. And what really concerns me with 
the panel----
    I really appreciate everybody for being here, and the 
families.
    I am really sickened by what really went on. The reason I 
say what I say is that I worked at the Massey mines. The mines 
that I worked at, at the Massey mines, they would take air 
readings until they got the right one, and then they would 
just--that's what they would do. Because the new detectors and 
everything reads memory, they wouldn't turn them in. When I 
first went to work for Massey, everyone had told me about it, 
and I said, ``No, they hadn't''--I said, ``It can't be that 
bad.''
    I went over there, and I worked at the Big Branch Mines. 
When the inspectors would shut the mines down that I went to 
work for, at the Kepler Mines, in Pineville--when they would 
shut the mines down, Massey would transfer us to different 
mines. Didn't matter if you worked there and knew it or 
nothing. That's where you had to go, where--you had to live out 
of your car. Went over to the Big Branch Mines, never knew 
nothing about the mines, went into the mines. They'd never give 
you a safety meeting. You went up on that section, and the 
first thing they said, ``That's your machine.'' I was a roof 
bolter. You went up to that roof bolter, the first thing they'd 
do was start tearing the ventilation curtain down, that 
ventilates the face.
    I heard Senator Rockefeller talk about the dust and the 
debris and stuff that creates the explosion. Hey, when the 
inspector would show up on the property, they would shut the 
section down. They would drop dust, they would get all the 
debris away that could cause an explosion. Soon as the 
inspector would leave the property they jerk all the 
ventilation back down and start mining coal. It's impossible 
for you to mine 600, 700 feet of coal in a 8-hour period out of 
coal mines, and do it right.
    I worked at union mines. I was working out of union mines. 
We try to do everything right. We do everything right, and the 
company wanted us to do everything right. It's not fair to 
those miners. Like I say, I worked there, and I talked to those 
guys. I'm not telling you what someone told me. I'd try to get 
those guys to understand that we need to stand up. And you know 
what they said? ``If you don't like it, you get out of here, 
because if we stand up, we all are fired.'' And that's the way 
that they operate.
    I worked until I couldn't take it no more. My wife was 
worried to death. I would fear for my safety the whole time I 
worked for them. So, I quit. I said, ``I will starve to death 
first.'' It's not right for a person, a human being, to have to 
go to work under those type of pressures and do a job. I mean, 
it's not right.
    People have gotten hurt, when I worked there. They would 
let you come to work. To keep from filing a accident report, 
they would put you on light duty--let you stay out in the bath 
house, or do a light-duty job to keep from filing an accident 
report, so it wouldn't go against the mines.
    It's just so much that, I don't have enough time to tell it 
all. But, it's not fair. Like Cecil said, this is America. We 
shouldn't have to live like that. I'm on the Mine Committee at 
the mines where I work at. I'm on the Safety Committee, and I 
have as much power as MSHA. I can tell them to shut the section 
down if something's not right, and we are going to fix it. 
Those men at Massey, they don't have that right. It's just not 
right.
    [The prepared statement of Mr. Harris follows:]
                  Prepared Statement of Jeffrey Harris
    My name is Jeffrey Harris. I am a coal miner from Beckley, WV. I 
have over 30 years of experience as an underground coal miner. For the 
last 4 years I have worked at the Harris #1 Mine, which is owned and 
operated by the Patriot Coal Company. I am a roof bolter, which means 
my job is to pin the underground roof of the mine to keep it safe. I 
also have experience doing most of the underground jobs including 
running equipment, working on the belts, and construction.
    Before my current job, I worked for Massey. I worked at the Keppler 
Mine in Pineville, WV and my job was roof bolter there, too. I worked 
for Massey for about 6 months in the first half of 2006. Even though I 
was hired to work at the Keppler Mine, I spent a little time at the 
Upper Big Branch, and some other Massey operations. When MSHA shut down 
the Keppler mine because of violations, the Company would send us to 
other mines to work.
    In the end, I quit my job with Massey because I couldn't take the 
poor conditions in the mine. I was scared and didn't feel comfortable 
working there. I am here to tell you about some of the things I know 
from my time working at Massey mines; things that aren't right and 
which shouldn't be allowed to continue. I am here because I am 
concerned that other miners are working in conditions I know aren't 
safe.
    Sometimes, if we had heard that there was too much gas, we'd be 
told the problem was taken care of and not to worry. We might not 
believe them that the problem was fixed, but we had a job to do and we 
worked. Then when an inspector came by, he would find excess gas and 
shut us down. This showed us that the Company couldn't be trusted.
    You might wonder why we would work if we thought it was dangerous. 
The answer is simple: either you worked or you quit. If you complained, 
you'd be singled out and get fired. Employees were scared, but like me 
they have to feed their family. Jobs are scarce, and good paying coal 
mining jobs are hard to come by.
    One of the problems at Upper Big Branch Mine was with the air. When 
we were outside they might talk about safety but as soon as you went 
underground it was a different story. When we got to a section to mine 
coal, they'd tear down the ventilation curtain. The air was so thick 
you could hardly see in front of you. When an MSHA inspector came to 
the section, we'd hang the curtain, but as soon as the inspector left, 
the curtain came down again. Some people would tell the inspectors 
about these kinds of ventilation changes that were made for the 
inspectors benefit, but the inspectors told us ``we need to catch it,'' 
and that didn't happen very often.
    At the Massey mines, we'd also shut down equipment when the 
inspectors were at the mine so they couldn't take readings while we 
were mining. We'd have to say the machine was ``down.'' As soon as the 
inspector left, we'd kick it right back into service. This was a common 
practice. I could tell the inspectors would get frustrated, but they 
had a lot of ground to cover and couldn't hang around waiting.
    In checking for gas, we would take a number of gas monitors to 
check for gas levels, but we would only report the lowest. If other 
readings were too high, they wouldn't get reported at all.
    The Massey mines were always understaffed, which also meant there 
weren't people available to take all the safety readings, or take care 
of the ventilation like it should be done. Our regular schedule was a 
12-hour day with 4 hours mandatory overtime. We had to wait for our 
replacement to take over before we could leave our equipment to go 
home. If the replacement didn't come, we'd have to stay and keep on 
working even beyond the 16 hours.
    Reports about Massey's lost time accidents are also misleading. I 
was lucky and never got hurt while I worked for Massey, but I know 
plenty of other guys who did get injured. If you got hurt, you were 
told not to fill out the lost time accident paperwork. The Company 
would just pay guys to sit in the bathhouse or to stay home if they got 
hurt--anything but fill out the paperwork.
    I could say even more but this gives you an idea of some of the 
problems. If an operator wants to, it's pretty easy to cut corners on 
safety. That's exactly what I saw at the Massey mines where I worked. 
People shouldn't have to work like that. Nobody should have to fear for 
their life just to earn a paycheck.
    Thank you for giving me this chance to talk about mine safety. I 
would be happy to answer your questions.

    The Chairman. Well, Mr. Harris, thank you very much, very 
powerful statement. That's why it's always good to have someone 
like you, who's out there, that gets their hands dirty, and 
goes in those mines, come here and tell us what it's really 
like.
    Mr. Addington.

   STATEMENT OF WES ADDINGTON, DEPUTY DIRECTOR, APPALACHIAN 
              CITIZENS' LAW CENTER, WHITESBURG, KY

    Mr. Addington. Chairman Harkin and members of the committee 
and Senator Rockefeller, thank you for allowing me to speak to 
you today regarding the health and safety of America's miners.
    My name is Wes Addington, and I'm an attorney at the 
Appalachian Citizens' Law Center, a nonprofit law firm that 
represents miners and their families on mine safety and health 
issues. At the Law Center, I operate the Mine Safety Project, 
which works to improve safety conditions for miners in the coal 
fields. Primarily, the Mine Safety Project represents miners 
that suffer workplace discrimination for making protected 
safety complaints.
    Unfortunately, I'm before you today following the mine 
explosion in Montcoal, WV, which has claimed the lives of 29 
miners. The Massey disaster, at Upper Big Branch, now becomes 
synonymous with death in the coal mines, like the four recent 
disasters before it: Crandall Canyon, Darby, Aracoma, and Sago. 
All were preventable. Five coal mining disasters in barely 4 
years is not only a crisis, it's a national disgrace.
    My father was a Kentucky coal miner, and his father before 
him, and all four of my great-grandfathers were miners. 
Congress's opening declaration in the MINE Act of 1977 is that, 
``The first priority and concern of all in the coal or other 
mining industry must be the health and safety of its most 
precious resource, the miner.'' However, moving forward, the 
miner should also be our most precious resource in any strategy 
to improve mine safety in America and prevent future disasters. 
Miners best know the conditions present in their mines, more so 
than even inspectors and operators, and can provide invaluable 
information to Federal regulators working to ensure their 
protection.
    Congress realized, long ago, that mine safety and health 
will generally improve to the extent that miners themselves are 
aware of mining hazards and play an integral part in the 
enforcement of the mine safety and health standards.
    We have to the reach the point in this country that miners, 
without hesitation, report unsafe conditions. However, recent 
mine disasters and scores of individual mining fatalities show 
that this is not happening frequently enough. Unfortunately, in 
too many mines, miners that complain about unsafe conditions 
are harassed, interfered with, or even discharged. Many miners 
feel that those who do complain aren't supported or protected 
to the degree envisioned under the MINE Act. Understandably, 
then, an experienced and skilled coal miner will often quit a 
bad situation and find a new job elsewhere, rather than ask 
MSHA or the State mine enforcement agency to investigate and 
remedy the unsafe conditions. Thus, the Federal Government has 
to do a better job of publicizing miners' safety rights and 
increasing their support of miners who exercise those rights.
    Now, I know my time is limited here, but I would just like 
to point the committee to my other two topics of interest that 
I planned on talking about today, which is increasing the 
frequency and the quality of training of miner safety rights, 
and the failure of MSHA to place mines on a Pattern of 
Violation notice.
    What I would like to talk about, really briefly, is 
representatives of miners. Representatives of miners are 
working miners that are selected by at least two other miners 
to represent them in safety and health matters at their mine. 
Miners' reps are granted special rights, under the Federal law, 
which are designed to encourage active participation in the 
enforcement of mandatory health and safety standards, and to 
keep their coworkers apprised of issues that might affect mine 
safety and health. They have the right to accompany MSHA 
inspectors during an inspection of the mine, for the purpose of 
aiding such inspection and to participate in pre- and post-
conferences held at the mine. They also have a right to receive 
every copy of any order, citation, notice, or decision that is 
given to the mine operator.
    Yet, with all the inherent safety advantages--the Miners' 
Right--the Rep system offers to miners, it is shockingly 
underutilized.
    A Freedom of Information Act response revealed, in 2008, 
that more than 98 percent of 249 coal mines in eastern 
Kentucky's MSHA district No. 6 did not have one miners' 
representative. Only 4 of those 249 mines had miners' 
representatives. One reason for the lack of miners' reps is 
that miners are often interfered with, or at least discouraged, 
by the operator if they show interest in becoming a miners' 
rep. One of our current clients was discharged for becoming a 
miners' rep at his mine.
    MSHA should devote special attention toward increasing the 
number of miners' reps, and I would encourage Congress to 
consider a change in the law to require miners' reps on every 
shift at every mine, to ensure the substantial safety 
protections gained through this system.
    Thank you.
    [The prepared statement of Mr. Addington follows:]
                  Prepared Statement of Wes Addington
                                Summary
    We have to reach the point in this country that miners, without 
hesitation, report unsafe conditions. However, recent mine disasters 
and scores of individual mining fatalities show that this is not 
happening frequently enough. Unfortunately, in too many mines, miners 
that complain about unsafe conditions are harassed, interfered with, or 
even discharged.
                       representatives of miners
    Representatives of Miners are working miners that are selected by 
at least two other miners to represent them in safety and health 
matters at their mine. Miners' Representatives are granted special 
rights under Federal law, which are designed to encourage active 
participation in the enforcement of mandatory health and safety 
standards and to keep their co-workers apprised of issues that affect 
their health and safety. Yet, with all the inherent safety advantages 
the Miners' Representative system offers to miners, it is shockingly 
underutilized. MSHA should devote special attention towards increasing 
the number of Miners' Representatives. I would encourage Congress to 
consider a change in the law to require a Miners' Representative be 
designated at every mine on each shift to ensure the safety protections 
gained through this system.
                        miners' rights training
    Congress envisioned a robust program to train the Nation's miners 
in the duties of their occupations, which includes thorough training of 
miners as to their statutory rights. Miners are in a unique position to 
monitor workplace conditions when inspectors are absent and have an 
active voice in safety issues at their mines. The present program has 
systemic shortcomings. In my experience, too many miners do not know 
that they can, under the law, voice concerns about workplace health and 
safety, refuse to perform unsafe work, review and give input to many 
aspects of an operator's plans for mining, or speak with MSHA 
inspectors and investigators without retaliation. Thus, to meet 
Congress' goals under the Mine Act, miners need more extensive and more 
frequent training of their statutory rights. Not only should the 
frequency of miners' statutory rights training increase, but also the 
quality of and methods by which miners receive such training.
                         pattern of violations
    In response to the Scotia Mine Disaster in 1976, Congress sought to 
address chronic and repeat violators and prevent operators from 
continually piling up citations for dangerous conditions. It is clear 
from the legislative history that Congress believed the ``pattern of 
violations'' provision in the Mine Act would be a strong enforcement 
tool to go after the worst violators. Yet, 33 years and more than a 
dozen mine disasters later, MSHA apparently has only issued one (1) 
``pattern of violations.'' The implementing regulation and MSHA's 
internal criteria for determining a ``pattern'' is currently framed so 
that it is nearly impossible for a repeat violator to be subjected to 
the enhanced enforcement intended in the statutory provision. MSHA has 
not used the statutory tools available in the Mine Act to aggressively 
address problem mines. Not only has MSHA unnecessarily constrained its 
ability to use the ``pattern of violations'' provision, it has 
reportedly never sought an injunction or restraining order against a 
mine that it believes engaged in a pattern of violation that 
constitutes a continuing hazard to the safety of miners as allowed 
under section 108(a)(2) of the Mine Act. Thus, additional legislation 
may be needed to fully realize Congress' intention 33 years ago to 
prevent mine operators from engaging in a pattern of recurrent 
violations that can ultimately lead to the deaths of miners.
                                 ______
                                 
    Chairman Harkin and members of the Senate Committee on Health, 
Education, Labor, and Pensions, thank you for allowing me to speak to 
you today regarding the health and safety of America's miners.
    My name is Wes Addington and I am an attorney at the Appalachian 
Citizens' Law Center, a non-profit law firm that represents miners and 
their families on mine safety and health issues. The Law Center is 
based in Whitesburg, KY, which is centrally located in the Appalachian 
coal fields.\1\ At the Law Center, I operate the Mine Safety Project, 
which works to improve safety conditions for miners in the coal fields. 
Primarily, the Mine Safety Project represents miners that suffer 
workplace discrimination for making protected safety complaints. In 
addition to mine safety, we also focus on the area of miners' health 
where we represent disabled miners afflicted with black lung disease 
and miners' widows whose husbands have died from the disease.
---------------------------------------------------------------------------
    \1\ Whitesburg is in Letcher County, site of the 1976 Scotia Mine 
Disaster, which killed 26 miners and mine inspectors and led to the 
passage of the Federal Mine Safety and Health Act of 1977.
---------------------------------------------------------------------------
    Unfortunately, I am before you today following the mine explosion 
in Montcoal, WV, which claimed the lives of 29 miners. The Massey 
Disaster at Upper Big Branch now becomes synonymous with death in the 
coal mines like the four recent disasters before it: Crandall Canyon, 
Darby, Aracoma, and Sago. All were preventable. Five coal mining 
disasters in barely 4 years is not only a crisis, it is a national 
disgrace.
    My father was a Kentucky coal miner and his father before him and 
all four of my great grandfathers were miners. Congress' opening 
declaration in Federal Mine Safety and Health Act of 1977 is that ``the 
first priority and concern of all in the coal or other mining in dustry 
must be the health and safety of its most precious resource--the 
miner.'' \2\ However, moving forward, the miner should also be our most 
precious resource in any strategy to improve mine safety in America and 
prevent future disasters. Miners best know the conditions present in 
their mines, more so than even inspectors and operators, and can 
provide invaluable information to the Federal regulators working to 
ensure their protection. Congress realized long ago that ``mine safety 
and health will generally improve to the extent that miners themselves 
are aware of mining hazards and play an integral part in the 
enforcement of the mine safety and health standards.'' \3\
---------------------------------------------------------------------------
    \2\ 30 U.S.C.  801 et al. (``Mine Act'').
    \3\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977), reprinted 
in Senate Subcommittee on Labor, Committee on Human Resources, 95th 
Cong., 2d Sess., Legislative History of the Federal Mine Safety and 
Health Act of 1977.
---------------------------------------------------------------------------
    We have to reach the point in this country that miners, without 
hesitation, report unsafe conditions. However, recent mine disasters 
and scores of individual mining fatalities show that this is not 
happening frequently enough. Unfortunately, in too many mines, miners 
that complain about unsafe conditions are harassed, interfered with, or 
even discharged. Many miners feel that those who do complain aren't 
supported or protected to the degree envisioned under the Mine Act. 
Understandably then, an experienced and skilled miner will often quit a 
bad situation and find a new job elsewhere, rather than ask MSHA or the 
State mine enforcement agency to investigate and remedy the unsafe 
conditions. Thus, the Federal Government has to do a better job of 
publicizing miners' safety rights under current law and increasing 
their support of miners that exercise those rights. In areas, current 
law is insufficient to properly protect our miners. With that in mind, 
I make the following recommendations:
                       representatives of miners
    Representatives of Miners are working miners that are selected by 
at least two other miners to represent them in safety and health 
matters at their mine.\4\ Miners' Representatives are granted special 
rights under Federal law, which are designed to encourage active 
participation in the enforcement of mandatory health and safety 
standards and to keep their co-workers apprised of issues that affect 
their health and safety. Miners' Representatives have the following 
rights:
---------------------------------------------------------------------------
    \4\ 30 U.S.C.  813(f).

     The right to receive a copy of every proposed mandatory 
health or safety standard or regulation at the time of publication in 
the Federal Register. Sec. 101(e) of the Mine Act.
     The right to accompany an MSHA inspector during the 
inspection of the mine, for the purpose of aiding such inspection and 
to participate in pre- or post-inspection conferences held at the mine. 
Sec. 103(f).\5\
---------------------------------------------------------------------------
    \5\ ``Presence of a representative of miners at opening conference 
helps miners to know what the concerns and focus of the inspector will 
be, and attendance at closing conference will enable miners to be fully 
apprised of the results of the inspection. It is the committee's view 
that such participation will enable miners to understand the safety and 
health requirements of the Act and will enhance miner safety and health 
awareness.'' S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977)
---------------------------------------------------------------------------
     The right to receive a copy of the notification to the 
operator for every citation or order issued by MSHA. Sec. 105(a).
     The right to receive a copy of the notification to the 
operator for every citation that the operator has failed to correct. 
Sec. 105(b)(1)(A).
     The right to receive a copy of any order, citation, notice 
or decision that is required by the Mine Act to be given to the 
operator. Sec. 109(b).
     The right to receive a copy of any electrical equipment 
permit granted. Sec. 305(b).

    In view of these special safety rights granted to Miners' 
Representatives, it's clear that Congress intended them to play a 
central role in matters of safety and health and be a vital source of 
information for the rest of the miners. MSHA has said that the Miners' 
Representative ``plays an important part in our inspection work.'' MSHA 
further stated:

          Congress put this into the Act because they felt that you 
        [the miner], with your knowledge of the work site, could 
        provide our inspectors with a great deal of useful information. 
        They also felt that if you watched what happened during an 
        inspection you would better understand how the Act's safety and 
        health requirements work.

    In fact, MSHA recommended that every shift have a Miners' 
Representative available.\6\
---------------------------------------------------------------------------
    \6\ A Guide To Miners' Rights and Responsibilities Under the 
Federal Mine Safety and Health Act of 1977. U.S. Department of Labor, 
MSHA (2000).
---------------------------------------------------------------------------
    Yet, with all the inherent safety advantages the Miners' 
Representative system offers to miners, it is shockingly underutilized. 
A Freedom of Information Act response revealed, in 2008, that more than 
98 percent of the 249 coal mines in eastern Kentucky's District 6 did 
not have a Miners' Representative.\7\ One reason for the lack of 
Miners' Representatives is that miners are often interfered with or at 
least discouraged by the operator if they show interest in becoming a 
Miners' Representative. One of our current clients was discharged for 
becoming a Miners' Representative at his mine. Additionally, MSHA does 
not sufficiently promote or encourage miners to become Miners' 
Representatives.
---------------------------------------------------------------------------
    \7\ The FOIA request was made by Dr. Celeste Monforton for every 
mine in the country with more than 5,000 employee hours.
---------------------------------------------------------------------------
    Thus, I would implore MSHA to devote special attention towards 
emphasizing and encouraging miners to become Miners' Representatives. 
Far too many miners aren't even aware that they can designate one of 
their co-workers to travel with inspectors during inspections and 
receive copies of all citations, orders, and notices issued to the 
operator. I would encourage Congress to consider a change in the law to 
require a Miners' Representative be designated at every mine on each 
shift to ensure the safety protections gained through this system.
                        miners' rights training
    Congress envisioned a robust program to train the Nation's miners 
in the duties of their occupations, which includes thorough training of 
miners as to their statutory rights. The present program has systemic 
shortcomings.\8\ The result is that a large number of miners do not 
have a thorough understanding of their statutory rights and as a 
consequence they are unable to exercise such rights. After completing 
the required 40-hour training for new underground miners in Kentucky 
myself, I realized that the portion of the training on miners' rights 
was woefully inadequate if we expect miners to actively participate in 
enforcement of health and safety standards at their mines.
---------------------------------------------------------------------------
    \8\ The bulk of my submitted testimony on miners' rights training 
was submitted to MSHA as part of Petition for Rulemaking in 2008. We 
had asked MSHA to make all of the changes recommended in this section 
of my testimony as they are able under their rulemaking authority. MSHA 
denied the Petition in full. For example, in response to a request that 
all miners be provided with a copy of MSHA's ``A Guide To Miners' 
Rights and Responsibilities Under the Federal Mine Safety and Health 
Act of 1977,'' the agency stated that the handbook ``is available to 
miners on MSHA's Web site.'' April 8, 2008 Letter from Acting Assistant 
Secretary, Richard E. Stickler. Anyone who has ever viewed MSHA's 
complicated Web site would understand that this was essentially non-
responsive.
---------------------------------------------------------------------------
    Training miners as to their statutory rights is an integral part of 
the Mine Act's requirements for health and safety training. For 
example, for new underground miners:

          Such training shall include instruction in the statutory 
        rights of miners and their representatives under this Act, use 
        of the self-rescue device and use of respiratory devices, 
        hazard recognition, escape ways, walk around training, 
        emergency procedures, basic ventilation, basic roof control, 
        electrical hazards, first aid, and the health and safety 
        aspects of the task to which he will be assigned.\9\ (emphasis 
        added).
---------------------------------------------------------------------------
    \9\ 30 U.S.C.  825(a)(1).

---------------------------------------------------------------------------
    Similarly, for new surface miners,

          Such training shall include instruction in the statutory 
        rights of miners and their representatives under this Act, use 
        of the self-rescue device where appropriate and use of 
        respiratory devices where appropriate, hazard recognition, 
        emergency procedures, electrical hazards, first aid, walk 
        around training and the health and safety aspects of the task 
        to which he will be assigned.\10\ (emphasis added).
---------------------------------------------------------------------------
    \10\ 30 U.S.C.  825(a)(2).

    Importantly, the Mine Act also requires that all miners receive at 
least 8 hours of refresher training annually.\11\
---------------------------------------------------------------------------
    \11\ 30 U.S.C.  825(a)(3).
---------------------------------------------------------------------------
    Federal Regulations set forth requirements for training and 
retraining of underground and surface miners, including training as to 
statutory rights. Part 48 requires that miners receive such statutory 
rights training only if they are new miners, and to a lesser extent, if 
they are experienced miners who are newly employed by an operator, 
transferring to the mine, or returning to a mine after an absence of 12 
months or more. Part 48 does not require that miners must receive 
statutory rights training during their annual refresher training.\12\
---------------------------------------------------------------------------
    \12\ 30 CFR part 48.
---------------------------------------------------------------------------
    In passing the Mine Act, Congress realized that miners must play a 
crucial role in maintaining a safe and healthy workplace:

          If our national mine safety and health program is to be truly 
        effective, miners will have to play an active part in the 
        enforcement of the Act. The committee is cognizant that if 
        miners are to be encouraged to be active in matters of safety 
        and health, they must be protected against any possible 
        discrimination which they might suffer as a result of their 
        participation.\13\
---------------------------------------------------------------------------
    \13\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).

    Because miners know the day-to-day work conditions as well as or 
better than anyone, obviously they should be encouraged to insist on 
maintaining a safe and healthy workplace. They are in a unique position 
to monitor workplace conditions when inspectors are absent. However, in 
my experience many miners do not know that they can, under the law, 
voice concerns about workplace health and safety, refuse to perform 
unsafe work, review and give input to many aspects of an operator's 
plans for mining, or speak with MSHA inspectors and investigators 
without retaliation. Many miners do not realize that they may designate 
a representative to perform numerous functions under the Mine Act, and 
that such a representative need not necessarily be affiliated with a 
labor union.
    Even if miners have some understanding of their statutory rights, 
they will not exercise those rights for fear of retaliation. They often 
lack confidence in MSHA's ability to protect them from retaliation, and 
rarely have anywhere else to turn for help. The upshot of this dynamic 
is that miners who find themselves working in unsafe or unhealthy 
conditions usually are silent about the unsafe conditions or find work 
at another mine, rather than speak out and risk retaliation, which can 
result in the assignment of undesirable work, threats from management 
or outright discharge. I've represented miners that have been fired for 
complaining about unsafe equipment and refusing to perform unsafe work. 
I've also represented a miner that was illegally suspended by the 
operator for not having required training for which the operator was 
actually responsible to provide.\14\
---------------------------------------------------------------------------
    \14\ ``No miner who is ordered withdrawn from a coal or other mine 
. . . shall be discharged or otherwise discriminated against because of 
such order; and no miner who is ordered withdrawn from a coal or other 
mine . . . shall suffer a loss of compensation during the period 
necessary for such miner to receive training and for an authorized 
representative of the Secretary to determine that such miner has 
received the requisite training.'' 30 U.S.C.  104(g)(2).
---------------------------------------------------------------------------
    Thus, to meet Congress' goals under the Mine Act, miners need more 
robust and more frequent training of their statutory rights. To remedy 
the problems outlined above, MSHA must change not only the frequency of 
miners' statutory rights training, but also the quality of and methods 
by which miners receive such training.
    As to the issue of frequency of statutory rights training, as noted 
above, MSHA requires statutory rights training under Part 48 primarily 
only for new miners. This obviously presents a problem, because even if 
new miners received the most dynamic statutory rights training, such 
knowledge fades over time. A miner may not need to exercise his or her 
statutory rights until several years into a mining career. At that 
juncture, if such miners have had relevant training only at the outset 
of their careers, they often do not know their statutory rights well at 
all and cannot protect themselves. An obvious solution to this dilemma 
is to require statutory rights training in annual refresher training.
    There should also be changes in the methods by which miners receive 
statutory rights training, and the substance and quality of that 
training. Operators and management personnel should not be permitted to 
provide any of the required statutory rights training to miners. There 
is simply too great a conflict of interest to permit mine operators to 
conduct statutory rights training. Operators have incentive to downplay 
the expansiveness and importance of these rights, the key role which 
Congress envisioned miners playing in regulation of the workplace, and 
the particulars of how miners can most effectively and fairly exercise 
such rights in the face of operator obstinacy and wrongdoing. Instead, 
miners should receive statutory rights training only from trainers who 
are independent of mine operators, such as trainings provided by State 
mine safety agencies.
    Additionally, the training should delineate each of the following 
statutory rights of coal miners and/or miners' representatives:

     Protection against discrimination for exercising any 
rights under the Mine Act.
     How-to's of naming a miners' representative for the 
various functions a representative can serve under the Mine Act and its 
implementing regulations.
     Participation in inspections.
     Reporting and notifying inspectors of violations and 
imminent dangers, and requesting inspections.
     Pay for being idled by withdrawal order.
     Contesting enforcement actions.
     Participation in investigations where dangerous conditions 
cannot be corrected with existing technology.
     Review of imminent danger orders.
     Participation in cases before Federal Mine Safety Health 
Review Commission that affect the miner.
     Part 48 training rights, including:

          Training during working hours.
          Pay while receiving training.
          Receiving training records from operator.
          Protection from discrimination and loss of pay for 
        lack of training.
          Review of all types of Part 48 training plans.

    Free examinations to ascertain exposure to toxic materials or 
harmful agents.
     Request of Department of Health and Human Services to 
study/research substance in mine environment for toxicity, or whether 
physical agents/equipment within mine are dangerous.
     Availability of chest x-rays free of charge, including 
explanation of intervals when such x-rays are to be made available.
     Transfer to less dusty atmosphere upon black lung 
diagnosis.
     Review and comment upon/objection to proposed standards, 
including legal challenges to proposed standards.
     Request to modify application of a certain safety standard 
at a mine, and participation in MSHA's decision when operator requests 
such a modification.
     Right to access information (recordings, findings, 
reports, citations, notices, orders, etc.) within MSHA and Department 
of Health and Human Resources.
     Observation of operator's monitoring of miner's exposure 
to toxics and other harmful agents, and access to records of exposure 
and information about operator abatement in cases of overexposure.
     Access to operator's accident records and reports.
     Notice of MSHA proposed civil penalty levied against 
operator.
     Operator posting of MSHA orders, citations, notices, etc., 
as well as receipt of same by miners' representative.
     Review of roof control plan and instruction in revision to 
such plan.
     Review of mine map illustrating roof falls.
     Notification of and instruction on escape from area where 
ground failure prevents travel out of the section through the tailgate 
side of a long-wall section.
     Review of records of examinations and reports (pre-shift 
examinations, weekly examinations for hazardous conditions, weekly 
ventilation examinations, daily reports of mine foremen and assistant 
mine foremen).
     Review of records of electrical examinations and maps 
showing stationary electrical installations.
     Review of underground mine maps.
     Operator's notification of submission of new ventilation 
plan or revision to existing ventilation plan, review of existing 
ventilation plan, comment upon proposed ventilation plan and any 
proposed revisions, and instruction from operator on ventilation plan's 
provisions.
     Review of records of examination of main mine fan.
     Review of records of examination of methane monitors.
     Review of records of torque/tension tests for roof bolts.
     Review of records of tests of ATRS roof support/structural 
capacity.
     Special instruction when rehabilitating areas with 
unsupported roof.
     Operator posting of escapeway maps and notification of 
changes to escape ways.
     Participation in escapeway drills.
     Posting and explanation of procedures to follow when 
mining into inaccessible areas.
     Review of records of diesel equipment fire suppression 
systems, fuel transportation units, and underground fuel storage 
facilities, as well as records of maintenance of diesel equipment and 
training records of those operating diesel equipment.
     Review and comment upon emergency response plans.
     Any other rights set forth in either statute or 
regulation.

    This additional training would highlight to miners that they are 
expected to exercise their statutory rights. A more informed and 
empowered miner workforce would decrease the odds that conditions in a 
mine could deteriorate to the point that a mine disaster could occur.
                         pattern of violations
    In response to the Scotia Mine Disaster in Letcher County, KY, 
which killed 23 miners and 3 mine inspectors in 1976, Congress sought 
to address chronic and repeat violators and prevent operators from 
continually piling up citations for dangerous conditions. The result 
was section 104(e) of the Mine Act which substantially increased the 
penalties for any operator that has a ``pattern of violations.'' \15\ 
It's clear from the legislative history that Congress believed the 
``pattern of violations'' provision would be a strong enforcement tool 
to go after the worst violators:
---------------------------------------------------------------------------
    \15\ 30 U.S.C.  814(e).

          Section [104(e)] provides a new sanction which requires the 
        issuance of a withdrawal order to an operator who has an 
        established pattern of health and safety violations which are 
        of such a nature as could significantly and substantially 
        contribute to the cause and effect of mine health and safety 
        hazards. The need for such a provision was forcefully 
        demonstrated during the investigation by the Subcommittee on 
        Labor of the Scotia mine disaster. . . . That investigation 
        showed that the Scotia mine, as well as other mines, had an 
        inspection history of recurrent violations, some of which were 
        tragically related to the disasters, which the existing 
        enforcement scheme was unable to address. The committee's 
        intention is to provide an effective enforcement tool to 
        protect miners when the operator demonstrates his disregard for 
        the health and safety of miners through an established pattern 
        of violations.\16\
---------------------------------------------------------------------------
    \16\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).

---------------------------------------------------------------------------
    They also believed it would send a strong signal:

          The committee believes that this additional sequence and 
        closure sanction is necessary to deal with continuing 
        violations of the Act's standards. The committee views the 
        [104(e)(1)] notice as indicating to both the mine operator and 
        the Secretary that there exists at that mine a serious safety 
        and health management problem, one which permits continued 
        violations of safety and health standards. The existence of 
        such a pattern, should signal to both the operator and the 
        Secretary that there is a need to restore the mine to effective 
        safe and healthful conditions and that the mere abatement of 
        violations as they are cited is insufficient \17\ (emphasis 
        added).
---------------------------------------------------------------------------
    \17\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).

    Finally, they felt that they provided flexibility, so a rigid 
---------------------------------------------------------------------------
standard wouldn't constrain the agency's use of the provision:

          It is the committee's intention to grant the Secretary in 
        Section [104(e)(4)] broad discretion in establishing criteria 
        for determining when a pattern of violations exists. . . . The 
        committee intends that the criteria make clear that a pattern 
        may be established by violations of different standards, as 
        well as by violations of a particular standard. Moreover. . . . 
        pattern does not necessarily mean a prescribed number of 
        violations of predetermined standards. . . . As experience with 
        this provision increases, the Secretary may find it necessary 
        to modify the criteria, and the committee intends that the 
        Secretary continually evaluate the criteria, for this purpose.

    Yet, 33 years and more than a dozen mine disasters later, MSHA 
apparently has only issued one (1) ``pattern of violations'' under the 
Mine Act. The implementing regulation and MSHA's internal criteria for 
determining a ``pattern'' is currently framed so that it is nearly 
impossible for a repeat violator to be subjected to the enhanced 
enforcement intended in the statutory provision.\18\ I have attached to 
my testimony a letter recently sent by myself and longtime mine safety 
advocate Tony Oppegard to MSHA requesting that they rescind and rewrite 
the regulation so that it complies with the statutory requirements of 
section 104(e).
---------------------------------------------------------------------------
    \18\ 30 CFR part 104; http://www.msha.gov/POV/POVsinglesource.asp.
---------------------------------------------------------------------------
    Much has been recently made of the effect that the significant 
backlog of cases at the Federal Mine Safety and Health Review 
Commission (``Commission'') has had on MSHA's ability to enforce the 
``pattern of violations'' provision against repeat violators. The claim 
is that mine operators are appealing all violations upon which a 
pattern could be based and their pending status ties MSHA's hands.\19\ 
Although the backlog is troubling and should be addressed, it is a red 
herring and not the root cause of the problem.\20\ Never mind that the 
backlog has only existed for a couple of the 33 years the ``pattern of 
violations'' provision has been on the books. Simply, MSHA has not used 
the statutory tools available in the Mine Act to aggressively address 
problem mines. Not only has MSHA unnecessarily constrained its ability 
to use section 104(e), it has reportedly never sought an injunction or 
restraining order against a mine that it believes engaged in a pattern 
of violation that constitutes a continuing hazard to the safety of 
miners as allowed under section 108(a)(2).\21\ Thus, additional 
legislation may be needed to fully realize Congress' intention 33 years 
ago to prevent mine operators from engaging in a pattern of recurrent 
violations that can ultimately lead to the deaths of miners.
---------------------------------------------------------------------------
    \19\ Although a recent report cited a ``computer program error'' 
and not the Commission's backlog for the failure to send a warning 
letter that Upper Big Branch mine may be placed on a ``pattern of 
violations.'' http://wvgazette.com/News/montcoal/201004130638.
    \20\ In fact, further undercutting the claim that endless appeals 
are preventing ``pattern of violations'' notices, is the 2006 agreement 
between the Solicitor and Massey Energy wherein the company could 
reopen delinquent penalties that had become final orders of the 
Commission:

       We consider the Secretary's position in this case in light of 
the provisions of the ``Informal Agreement between Dinsmore & Shohl 
Attorneys and Department of Labor--MSHA--Attorneys Regarding Matters 
Involving Massey Energy Company Subsidiaries'' dated September 13, 
2006. Therein, the Secretary agreed not to object to any motion to 
reopen a matter in which any Massey Energy subsidiary failed to timely 
return MSHA Form 1000-179 or inadvertently paid a penalty it intended 
to contest so long as the motion to reopen is filed within a reasonable 
time. Thus, we assume that the Secretary is not considering the 
substantive merits of a motion to reopen from any Massey Energy 
subsidiary so long as the motion is filed within a reasonable time. 
Such agreements obviously are not binding on the Commission, and the 
Secretary's position in conformance with the agreement in this case has 
no bearing on our determination on the merits of the operator's 
proffered excuse.--Secretary of Labor, MSHA v. Rockhouse Energy Mining 
Co., 31 FMSHRC 847 (Aug. 11, 2009).
    \21\ 30 U.S.C.  818(a)(2).
---------------------------------------------------------------------------
    Once again, we as a nation are reeling from another mine disaster. 
However, Congress has an opportunity to enact changes that can ensure 
the protection of today's miners and prevent future generations of 
mining families from suffering like too many families have over the 
years. Thank you for taking my recommendations into consideration.
                                 ______
                                 
                    Tony Oppegard, Attorney-at-Law,
                                       Lexington, KY 40522.

                    Wes Addington, Attorney-at-Law,
                                      Whitesburg, KY 41858,
                                                    April 12, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety & Health,
Mine Safety & Health Administration,
1100 Wilson Boulevard,
Arlington, VA 22209,

Re: Request to rescind ``pattern of violations'' regulation.

    Dear Mr. Main: On behalf of the coal miners that we represent in 
safety-related litigation in the coal fields of eastern Kentucky, we 
hereby respectfully request MSHA to immediately rescind its ``Pattern 
of Violations'' regulation found at 30 CFR Part 104, and to re-write 
the regulation so that it complies with the statutory requirements set 
forth in  104(e)(1) of the Mine Act and as expressed in the Mine Act's 
legislative history.
    Section 104(e)(1) provides, in pertinent part, that:

          ``If an operator has a pattern of violations of mandatory 
        health or safety standards in the coal or other mine which are 
        of such nature as could have significantly and substantially 
        contributed to the cause and effect of . . . mine health or 
        safety hazards, he shall be given written notice that such 
        pattern exists. If, upon any inspection within 90 days after 
        the issuance of such notice, an authorized representative of 
        the Secretary finds any violation of a mandatory health or 
        safety standard which could significantly and substantially 
        contribute to . . . a safety or health hazard, the authorized 
        representative shall issue an order requiring the operator to 
        cause all persons in the area affected by such violation . . . 
        to be withdrawn from, and to be prohibited from entering, such 
        area until an authorized representative determines that such 
        violation has been abated'' (emphasis added).

    The committee that drafted the ``Pattern of Violations'' provision 
stated that:

          ``The need for such a provision was forcefully demonstrated 
        during the investigation by the Subcommittee on Labor of the 
        Scotia mine disaster which occurred in March 1976 in eastern 
        Kentucky. That investigation showed that the Scotia mine, as 
        well as other mines, had an inspection history of recurrent 
        violations, some of which were tragically related to the 
        disasters, which the existing enforcement scheme was unable to 
        address. The committee's intention is to provide an effective 
        enforcement tool to protect miners when the operator 
        demonstrates his disregard for the health and safety of miners 
        through an established pattern of violations.
          The committee believes that this additional sequence and 
        closure sanction is necessary to deal with continuing 
        violations of the Act's standards. The committee views the  
        105(d)(1) notice as indicating to both the mine operator and 
        the Secretary that there exists at that mine a serious safety 
        and health management problem, one which permits continued 
        violations of safety and health standards. The existence of 
        such a pattern should signal to both the operator and the 
        Secretary that there is a need to restore the mine to effective 
        safe and healthful conditions and that the mere abatement of 
        violations as they are cited is insufficient.
          The committee intends that the criteria [to determine when a 
        pattern of violations exists] make clear that a pattern may be 
        established by violations of different standards, as well as by 
        violations of a particular standard. Moreover, while the 
        committee considers that a pattern is more than an isolated 
        violation, pattern does not necessarily mean a prescribed 
        number of violations of predetermined standards nor does it 
        presuppose any element of intent or state of mind of the 
        operator. . . .''--Legislative History of the Federal Mine 
        Safety & Health Act of 1977, at 32-33 (1978) (emphasis added)

    Based on the foregoing plain language of the statute, as well as 
its legislative history, we believe the Mine Act mandates MSHA to 
notify an operator whenever a pattern of violation exists. The 
regulation promulgated by MSHA--which WARNS the operator that it might 
be placed on a pattern if it doesn't improve its safety performance--in 
our view, contradicts the plain language of the provision and, 
moreover, defeats its intent. By WARNING an outlaw operator, MSHA is 
effectively telling the operator how to avoid being placed on a pattern 
and thus how to avoid stricter scrutiny of its compliance with the law. 
We think it akin to an MSHA inspector observing a violation, but 
improperly warning the operator that a citation will be issued if the 
violation is not corrected in a prescribed period of time.
    The fact that only one coal mine in the entire United States has 
been placed on a pattern under  104(e)(1) since the passage of the 
Mine Act in 1977 should make it obvious to MSHA that this provision of 
the law is not working. We believe that the Congress that enacted this 
important enforcement tool in 1977 would be stunned to know that it has 
only been used once in the past 33 years--despite the fact that miners 
continue to die at an unacceptable rate in our Nation's mines.
    Indeed, the extensive and flagrant violation history of the Upper 
Big Branch mine makes clear that that mine should have been ``placed on 
a pattern'' long before the recent disaster. Any mine that accumulates 
almost 50 unwarrantable failure violations in a single year deserves 
the heightened scrutiny provided by  104(e)(1) of the Mine Act. The 
fact that Massey's Upper Big Branch mine did not meet the criteria set 
forth in MSHA's ``pattern of violations'' regulation is proof that the 
regulation contradicts the intent of the statutory provision. Had MSHA 
used this enforcement tool as Congress intended, the mine would have 
received the stricter scrutiny that might have prevented the disaster.
    Please call us if you have any questions about this request. Thank 
you for your consideration of this matter.
            Sincerely,
                                             Tony Oppegard,
                                                   Attorney-at-Law,
               P.O. Box 22446, Lexington, KY 40522; (859) 948-9239.
                                             Wes Addington,
                  Attorney-at-Law, Appalachian Citizens Law Center,
             317 Main Street, Whitesburg, KY 41858; (606) 633-3929.
                                 ______
                                 
    The Chairman. Thank you, Mr. Addington. Thank you for that 
suggestion. We'll look at it seriously.
    Mr. Watzman, welcome.

 STATEMENT OF BRUCE WATZMAN, SENIOR VICE PRESIDENT, REGULATORY 
      AFFAIRS, NATIONAL MINING ASSOCIATION, WASHINGTON, DC

    Mr. Watzman. Thank you, Mr. Chairman, for the opportunity 
to appear today.
    Before turning to the topic of this hearing, let me again 
express the condolences of the entire mining community to the 
families of those who tragically lost their lives at the Upper 
Big Branch Mine. Our thoughts and prayers are with all who are 
touched by this tragedy. Our heartfelt thanks go out to the 
rescue team members who worked so tirelessly to recover their 
fellow miners.
    I come here today to assure you that we will join with you 
to find out what happened at the mine, and why it happened. We 
do not accept that mining tragedies are inevitable. We join 
with others here today to ensure that from this tragedy will 
emerge a stronger resolve to do better what we've tried so hard 
to do well.
    We understand the significance of the challenge we face, to 
bring all miners home safely from their important work. This is 
the responsibility that we owe all who work in the mines, and 
it's the debt that we owe those who perished at the Upper Big 
Branch Mine.
    Mine safety is an operator's obligation, and must be their 
highest priority. Both operators and MSHA have a shared 
responsibility to ensure a safe workplace. It is this shared 
responsibility that led to the dramatic improvement of the last 
2 years, where we achieved all-time historic lows, in terms of 
the number of miners who lost their lives. Still too many, but 
the record was improving.
    Several themes have emerged since the events of April 5, 
and I'd like to address three that are most relevant to this 
hearing.
    First is the question of the adequacy of enforcement 
authority provided MSHA under the MINE Act, the quality of 
workplace inspections, and the appropriate application of the 
full range of enforcement authority provided in the law.
    Second is the backlog of cases pending before the Review 
Commission, and whether these appeals jeopardize miners' safety 
and health by preventing MSHA from instituting additional 
sanctions against operators.
    And third, whether new laws or regulations are necessary to 
create a culture of prevention across the industry.
    Turning to the first issue, attached to my written 
statement is an analysis demonstrating how the enforcement 
authority under the MINE Act goes well beyond the enforcement 
authority provided OSHA, for example. Mines are subject to 
mandatory inspections. Inspectors have warrantless entry 
authority; authority to withdraw miners from any area of the 
mine, for failure to abate cited conditions, for failure to 
comply with mandatory standards, and when an imminent danger is 
present. The enforcement powers under the MINE Act are 
extensive. They need to be used, when conditions warrant, 
rather than broadly supplemented.
    The second issue is the backlog of cases before the Review 
Commission. We support efforts to eliminate the backlog. Its 
continuation does not serve the interest of miners nor mine 
operators. We want to assure you that we're ready to take the 
steps now to correct what all agree is a dysfunctional citation 
and appeals process. Unlike under OSHA, appealing a citation 
under the MINE Act, does not stay the requirements to correct 
the alleged violation. The ``abate first and contest later'' 
rule of the MINE Act imposes immediate and substantial 
obligations on operators to eliminate, whether valid or not, 
the perceived hazard that gave rise to the condition under 
which the citation is issued.
    Now, some believe that the backlog results from a 
deliberate attempt by some operators to clog the adjudicatory 
system to prevent the agency from placing a mine on the pattern 
cycle. Even if one were to accept this, there is, without 
question, the ability of the agency to take additional 
enforcement actions. The imminent danger authority, which was 
discussed earlier, is available. Unlike pattern authority, it 
doesn't require even the finding of a violation of a mandatory 
standard. It's far more powerful than the pattern tool, but 
it's infrequently used.
    MSHA also has injunctive relief authority. The fact is, 
Congress did not limit MSHA's enforcement authorities. The 
tools are sufficient, when properly used.
    The final point is what we need to do to create a culture 
of safety across the entire industry, a culture of prevention 
across the industry. In our view, the strategies for improving 
performance must change. Last year, 86 percent of the mines in 
our industry worked the entire year without a lost-time 
accident. Enforcement contributed to this record. It's 
necessary, but it, in and of itself, is not sufficient.
    We need to place renewed emphasis on risk-based safety 
performance through programs that share the best of the best in 
safety performance with the entire industry. These are vital 
components of an effective safety effort that go beyond 
regulatory enforcement authority.
    Mine operators who improve their performance year after 
year recognize the need to go beyond mere conformity with the 
law. They understand that regulations alone aren't sufficient 
to bring about continued improvement.
    It's time for all of us to recognize that culture, 
leadership, training, and other organizational behavioral 
factors influence performance. To the extent they fall short, 
regulators provide a needed and necessary safety net. 
Regulators and mine operators must stand apart, but an 
adversarial relationship should not be a hostile relationship 
as we seek better ways to improve miner safety.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Watzman follows:]
                  Prepared Statement of Bruce Watzman
    Mr. Chairman and members of the committee, thank you for providing 
the National Mining Association (NMA) the opportunity to share our 
thoughts on: (1) whether the Federal Mine Safety and Health Act of 1969 
as amended and as administered by the Mine Safety Health Administration 
(MSHA) is an effective tool to ensure safe worksites and safe operator 
behavior; and (2) whether the enforcement authorities of the act, 
including the assessment and adjudication structure, are sufficient to 
create a culture of compliance at the Nation's mines.
    Allow me, again, to express the condolences of the entire mining 
community to the families of those who tragically lost their lives at 
the Upper Big Branch (UBB) mine. Our thoughts and prayers are with all 
who were touched by this tragedy, and our heartfelt thanks are extended 
to all of the rescue personnel who worked so tirelessly to recover the 
fallen. We also commend President Obama and Vice President Biden for 
giving appropriate recognition and solace to the mining community at 
Beckley, WV last weekend.
   commitment to a complete, impartial and transparent investigation
    I come here today to assure you that the full resources of American 
mining will join with State and Federal agencies, academic institutions 
and other professionals to find out what happened at the Upper Big 
Branch mine and why it happened. This will require a thorough review of 
the roles played by all parties--mine management, miners and Federal 
and State regulators--who were shaping the policies and procedures at 
the mine prior to the accident. We do not accept this or any mining 
tragedy as inevitable. Preventing a reoccurrence must include a 
complete and transparent examination of the actions of all parties. At 
the very least, we must use Upper Big Branch as a tool to further 
improve mine safety.
    For those reasons we applaud the decision of Secretary of Labor 
Solis to request an independent party to undertake a review of MSHA's 
actions leading up to and following this tragic event. This will ensure 
an impartial and open investigation. As in the past, numerous valuable 
reports will emerge from the examination process that is now underway. 
Despite inevitable overlaps, the forthcoming analyses, findings and 
recommendations must be evaluated and decisions to implement the 
recommendations must be made quickly to better protect miners.
    We understand the significance of the task we face, to ensure a 
tragedy like this one is not repeated. Our goal remains to bring all 
miners home safely from their important work. That is the 
responsibility American mining owes all who work in our mines, and it 
is the debt we owe those who perished.
    We join with others here today to ensure that from this tragedy 
will emerge stronger resolve and more comprehensive cooperation in our 
pursuit of safer mines. Our expectation is that from this and similar 
hearings and from the exhaustive investigations underway we can do 
better in what we've tried hard to do well.
    Last week in remarks to the Nation, President Obama stated that all 
miners deserve ``a company that's doing what it takes to protect them, 
and a government that is looking out for their safety.'' We agree. 
American mining has made significant investments in and commitment to 
mine safety in recent years and has successfully lowered our rate of 
injuries. Last year was the safest year in history for all of U.S. 
mining and for coal mining. We understand, however, that this 
accomplishment offers little solace to the families that lost loved 
ones. The loss of life at the Upper Big Branch Mine calls our progress 
into question. We understand that. Only when the lessons learned from 
this tragedy are clearly identified and woven into the fabric of daily 
operating procedures can we expect to realize the full results of our 
commitment to safety.
    As this committee considers what it will hear today and the results 
of the investigations that are currently underway, it is appropriate to 
consider if existing enforcement authority is sufficient to protect 
miner safety. Put another way, we should consider whether the 
enforcement process is properly focused on quality workplace 
inspections and the appropriate application of the full range of 
enforcement authority provided in the law.
               msha's enforcement authority is sufficient
    In our view, the enforcement authority provided MSHA under the Mine 
Act is sufficient to ensure that mine operators are providing a safe 
and healthy work environment for their employees. The Mine Act goes 
well beyond the authority provided to the Occupational Safety and 
Health Administration (OSHA), for example. Unlike workplaces in general 
industry, mines are currently subjected to mandatory inspections during 
which inspectors have the authority to enter without a warrant, 
evaluate an entire mine and withdraw miners from any area of a mine for 
failure to abate cited conditions, for unwarrantable failure to comply 
with mandatory standards, and in any area that presents an imminent 
danger. Withdrawal orders may be issued on the spot by any authorized 
representative of the Secretary. This is the most powerful enforcement 
tool afforded any enforcement agency.
    Many mines, because of the time needed to conduct an inspection, 
have inspectors on site nearly every day. Additionally, the Mine Act 
contains individual civil penalties for corporate officers and agents 
for knowing violations and possible criminal sanctions of 1-year for 
accidents not involving a fatality. In sum, the enforcement powers 
under the Mine Act need to be used when conditions warrant, and if MSHA 
was not using them to their fullest extent, Congress should examine the 
reasons for that before increasing the enforcement power. (Attachment 1 
summarizes MSHA's critical enforcement authority.)
    Much attention also has been focused on MSHA's use of the ``Pattern 
of Violation'' authority under the act. While we can speculate on 
whether or not placing UBB under a Pattern of Violation would have 
prevented the events of April 5, we must recognize that MSHA has other 
enforcement tools that accomplish the same result as the pattern 
provision. In fact, the ``imminent danger'' withdrawal authority of the 
act, unlike ``Pattern,'' does not even require the finding of a 
violation of a mandatory health or safety standard before a withdrawal 
order can be issued.
    Hence, ``imminent danger'' authority is a far more powerful 
enforcement tool than the ``pattern'' authority.
   backlog in contested citations is untenable and must be addressed
    Let me turn now to the citation and appeals process and clearly 
state that the current backlog in contested citations is untenable and 
must be addressed. Let me be equally clear that when a violation is 
cited, the mine operator must abate the underlying cause within the 
time set by the mine inspector. The abatement action is not subject to 
appeal: It must be taken. This requirement is also unique to American 
mining. (See attachment 2)
    Once the underlying condition has been abated, only then can the 
merits of the original alleged violation and the resulting penalty be 
contested. Recently, attention has focused on the rate at which mine 
operators have been formally contesting citations and actions, 
including citations and withdrawal orders issued by MSHA. Attention has 
also focused on whether this has prevented the agency from instituting 
additional sanctions, including ``Pattern of Violations'' enforcement. 
This matter was thoroughly discussed at a February hearing before the 
House Education and Labor Committee. While reasonable people may 
disagree on the cause for the backlog of cases pending before the 
Federal Mine Safety and Health Review Commission, all agree that this 
situation cannot continue. The backlog does not serve the interest of 
miners or the interest of mine operators. We pledge to work with 
Congress to eliminate it.
    Reducing the backlog will require, among other things, the 
commitment of additional resources to fund the hiring of new staff at 
the Commission and within the Department of Labor's Office of the 
Solicitor. Attachment 3 contains a summary of the evolution of the 
agency's conference system for citations and actions and our additional 
recommendations for improving the current system.
     potential causes of appeals to citations, orders and penalties
    Looking beyond the immediate task of reducing the backlog, we need 
to examine the causes and what must be done to prevent a reoccurrence. 
During his testimony before the House, MSHA Assistant Secretary Main 
outlined several steps he was considering to address this problem. 
While details remain to be worked out, we support the thrust of his 
views and look forward to working with him and all stakeholders to 
eliminate the backlog.
    To fix an appeals process that all agree is broken, it is important 
to understand why it is broken. Allow me to offer our observations on 
the causes of the increase in appeals--many of which we share with 
Assistant Secretary Main. Key among the contributing factors is the 
subjectivity of the citation and order process, the discretionary 
authority of the inspector and the related influence of inspector 
training and experience. The regulations upon which inspectors base 
enforcement actions are predominately comprised of performance-based 
standards. The interpretation of these standards is based on individual 
circumstances and can vary from inspector to inspector and between 
inspector and operator based on the facts unique to the cited condition 
or practice.
    The penalty amounts, which have also increased, are not only based 
on the inspector's enforcement discretion in alleging a violation of a 
standard, but also on the inspector's conclusions on a number of other 
factors, all of which are discretionary based on his or her 
interpretation of the circumstances surrounding an alleged violation. 
These factors can have a profound impact on penalty amounts. They 
include likelihood of occurrence, severity of injury, degree of 
negligence and the number of persons affected by the allegations, to 
mention only a few of the considerations that are set out in the 
regulations and in the Mine Act and influence the penalty calculation.
    Because there is unavoidable subjectivity in the citation and order 
process and wide discretion is afforded the inspector when 
characterizing violations under the penalty criteria, inspector 
training and experience can have significant influence on the outcomes 
as was pointed out in the recent Department of Labor, Office of the 
Inspector General report on required retraining of inspectors. (Report 
Number 05-10-001-06-001, March 30, 201)
    Until Feb. 2008, an informal consultation process was used to 
resolve most of the disagreements between the inspector and the mine 
operator that arose from the subjective interpretation of performance-
based standards and the discretionary authority of the inspector in 
assessing factors that affect penalties. When that process was 
suspended, all differences were, by default, thrown into the appeals 
process. There was, however, no commensurate increase in resources to 
handle the inevitable growth in what are now classified as ``formal 
contests'' simply because they are pending at the Commission, rather 
than at the agency. Between higher fines and the elimination of lower 
level conferences, appeals were inadvertently incentivized because any 
disagreement over any aspect of the inspector's enforcement discretion 
became subject to a formal contest proceeding.
    Allow me to re-state our commitment to work with Congress and MSHA 
to eliminate the backlog while preserving operators' due process 
rights. NMA and MSHA have both offered suggestions for achieving that 
objective, and we look forward to additional productive recommendations 
from this committee and others.
    mine safety goes beyond regulatory requirements and enforcement
    Beyond the enforcement arena, we need to examine what programs, 
procedures and practices are working and disseminate that information 
across all of mining. We have worked with companies to foster the 
implementation of risk management processes, and we've launched a risk-
based safety awareness campaign targeting known hazards. We initially 
focused attention on selected areas of mining operations with the 
highest accident rates and then built voluntary awareness programs 
around each one. Going forward, we envision a larger effort to ensure 
that best practices and procedures and information on promising 
techniques and technologies for reducing accidents on the job are 
shared throughout mining.
    Our efforts are singular in focus, to bring all miners home safely 
from their important work. In the end, mine and miner safety is the 
operator's obligation and must be their highest priority. To the extent 
they fall short regulators provide a needed safety net in the full 
meaning of the term. If unintended consequences of policies have 
diminished MSHA's perception of its authority, we have a shared mission 
to rectify that situation.
                                 ______
                                 
   Attachment 1.--Critical Enforcement Authority of the Federal Mine 
                    Safety and Health Administration
                        i. enforcement authority
Citations
    MSHA may issue a citation for violation of the 1977 Mine Act or for 
violation of a mandatory health or safety standard, rule, order or 
regulation. A citation requires that corrective action be taken by the 
mine operator to correct the condition or practice cited, but it does 
not result in the cessation of the activity or equipment at issue. A 
citation shall be issued with reasonable promptness, shall be in 
writing, and shall describe with particularity the nature of the 
violation, including reference to the statutory or regulatory provision 
alleged to have been violated. Further, ``the citation shall fix a 
reasonable time for the abatement of the violation.'' Citations may be 
characterized as ``significant and substantial.''

     The term ``significant and substantial'' refers to the 
gravity of, or the degree of hazard or risk posed by, the alleged 
violation. The Commission has held that ``[a] violation is of such a 
nature as could significantly and substantially contribute to the cause 
and effect of a mine safety or health hazard if, based upon the 
particular facts surrounding that violation, there exists a reasonable 
likelihood that the hazards contributed to will result in an injury or 
illness of a reasonably serious nature.''

    Additionally, MSHA may issue an unwarrantable failure citation for 
a violation that could significantly and substantially contribute to a 
health or safety hazard and resulted from a heightened degree of 
negligence, such as indifference to health and safety. This starts the 
cumulative enforcement action known as the ``unwarrantable failure'' 
withdrawal order chain, which the operator remains on until there is an 
intervening inspection that reveals no further violations resulting 
from heightened negligence.

     The term ``unwarrantable failure'' refers to the 
operator's degree of fault or negligence in causing a violation or 
allowing it to exist. The term has been defined by the Commission as 
``aggravated conduct constituting more than ordinary negligence.''
Withdrawal Orders
    A withdrawal order may be issued on the spot and without a hearing 
and results in the immediate closure of the area, equipment, or 
practice that is alleged to be in violation of the standards. All 
personnel associated with the condition or practice must be withdrawn, 
except those persons necessary to correct the violation.
    Every withdrawal order issued requires that the inspector determine 
the ``area affected'' by the condition, which depends on the nature and 
extent of the hazard specifically identified. Depending on the facts 
and circumstances, a withdrawal order could include, for example, a 
piece of equipment or area of a mine, or it could affect an entire mine 
depending on the nature and extent of hazard.
    Withdrawal orders may result from failure to abate a violation 
within the time prescribed under section 104(b).
    An unwarrantable failure withdrawal order may be issued subsequent 
to a section 104(d)(1) citation during the same inspection or within 90 
days after issuance of such a citation if violations result from 
heightened negligence (and regardless of whether any serious hazard is 
presented) until a complete inspection of the mine reveals no further 
heightened negligence violations.
    MSHA has withdrawal order authority under section 104(e) of the 
Mine Act for significant and substantial violations following written 
notice from MSHA of a ``pattern of violations.'' This is also a 
cumulative enforcement process that results in the issuance of a 
withdrawal order every time a violation is found to ``significantly and 
substantially'' contribute to a serious hazard until an entire 
inspection of the mine reveals no further ``significant and 
substantial'' violations.
    MSHA has the authority to issue a withdrawal order under section 
107(a) if an imminent danger is found by an inspector, which is a 
condition or practice ``which could reasonably be expected to cause 
death or serious physical harm before such condition or practice can be 
abated.'' A finding of an imminent danger does not require a finding of 
a violation of a mandatory health or safety standard.
    MSHA may issue a withdrawal order for untrained miners under 
section 104(g) of the Mine Act, which affects every miner deemed to 
have inadequate training and forces the withdrawal of such miners until 
they have received the required training.
                        ii. injunctive authority
    The 1977 Mine Act authorizes MSHA to pursue a civil action against 
an operator in Federal district court seeking relief, including 
temporary or permanent injunctive relief or a restraining order. MSHA 
may seek such relief whenever a mine operator or its agent refuses to 
comply with any order or decision issued under the 1977 Mine Act; 
interferes with, hinders, or delays MSHA from carrying out its duties; 
refuses to allow an inspection or accident investigation; or refuses to 
provide other information or documents.
                   iii. penalty assessments criteria
    A mine operator who receives a citation or a withdrawal order is 
subject to a maximum civil penalty of $70,000, unless the violation is 
deemed to be ``flagrant,'' which can result in a maximum civil penalty 
of $220,000. ``Flagrant'' violations are ``[a] reckless or repeated 
failure to make reasonable efforts to eliminate a known violation of a 
mandatory health or safety standard that substantially and proximately 
caused, or reasonably could have been expected to cause, death or 
serious bodily injury.''
    Any operator who fails to correct a violation for which a section 
104(a) citation has been issued may be assessed a civil penalty of not 
more than $7,500 per day that the condition is allowed to continue 
unabated.
    MSHA must impose a minimum penalty of $5,000 for failure to timely 
notify MSHA of an accident involving the death of an individual at the 
mine or an injury or entrapment of an individual at the mine that has a 
reasonable potential to cause death. Minimum penalties must be assessed 
for unwarrantable failure violations at $2,000 for citations or orders 
issued under section 104(d)(1) and $4,000 for orders issued under 
section 104(d)(2).
    Civil and/or criminal penalties may be imposed by MSHA/DOJ on 
agents, officers and directors who knowingly authorize, order or carry 
out violations of mandatory standards.
    Criminal penalties may be imposed on any person who knowingly 
falsifies a record or document required to be maintained under the 1977 
Mine Act.

                   Attachment 2.--MSHA/OSHA Comparison
------------------------------------------------------------------------
                   MSHA                                 OSHA
------------------------------------------------------------------------
No State Plans............................  State plans.
Annually, two (2) mandatory complete        No mandatory inspections.
 inspections for surface operations; four
 (4) mandatory complete inspections for
 underground operations.
No general duty clause....................  General duty clause
                                             requirement that employers
                                             correct hazards
                                             irrespective of defined
                                             regulatory requirements.
Mandatory penalties for all citations.....  No mandatory penalties for
                                             all citations.
Inspectors have closure order authority     Closure orders by court
 for failure to abate, unwarrantable         order only.
 failure, and imminent danger conditions.
Individual civil penalties for corporate    No individual civil
 officers and agents for knowing             penalties for corporate
 violations and possible criminal            officers. Six-month
 sanctions of 1 year possible for            criminal sanctions for
 accidents not involving a fatality.         fatality-related incidents.
Injury & illness reports and statistics     Injury & illness reports and
 are required to be submitted to MSHA for    statistics are required to
 each incident by each mine site.            be maintained in a log and
                                             made available for review
                                             but not reported.
Mandatory new employee training: 40 hours   No mandatory minimum general
 for underground miners, 24 for surface      training required. Training
 miners. Mandatory refresher and task        required by specific
 training.                                   standards.
Regulatory requirements are supplanted by   No general plan approval
 required site operating plans that must     authority.
 be approved by MSHA. Plan provisions are
 enforceable as if they were regulatory
 requirements.
Employee representative entitled to         No walk-around pay.
 inspection walk-around pay.
Individual employees may bring              No private right of action
 discrimination cases based on safety even   for safety discrimination
 if MSHA refuses to prosecute a case.        case.
------------------------------------------------------------------------

    Attachment 3.--Mine Safety and Health Administration (Citation/
                           Conference System)
         i. history of enforcement actions (the initial system)
    Mine Safety and Health Administration regulations in 30 CFR Part 
100.6 provide for an informal resolution of questions regarding 
enforcement actions. This history timeline begins with the adoption of 
the Alternative Case Resolution Initiative (ACRI).
    During the Clinton administration in 1994, ACRI was developed with 
MHSA and the Office of the Solicitor joining together and designating 
Conference/Litigation Representatives (CLR). The CLR was an inspector 
trained by the Solicitor to handle the informal conferences that the 
District Manager was required to conduct. By 2001, the CLRs were 
handling all the safety and health conferences and about 35 percent of 
the total number of cases that operators contested (the Solicitor 
placed limits on what type of cases the CLRs could handle). An MSHA 
Fact Sheet (95-9) has the following quote:

          Mine operators may also seek informal conferences following 
        the issuance of the citation or order under 30 CFR Part 100.6. 
        The CLRs in Coal Districts and Supervisory Mine Inspectors in 
        Metal/Nonmetal Districts primarily serve on behalf of the 
        District Manager and meet with the operator to attempt an 
        informal resolution of the dispute before a civil penalty is 
        assessed.
          This widely recognized and highly commended program is one of 
        the few times that non-lawyers have represented a Cabinet-level 
        official in a legal proceeding. As of Aug. 30, 2001, MSHA has 
        trained over 100 enforcement personnel to act as CLRs for the 
        ACRI program and there are CLRs designated in each MSHA 
        district office. The CLRs are currently responsible for 
        processing approximately 35 percent of the total number of 
        cases contested by mine operators.
          MSHA and the mining community are reaping the benefits of the 
        ACRI program. The CLRs efforts have reduced formal litigation, 
        improved relations between MSHA and the mining community, 
        improved communications between MSHA's inspectors and the legal 
        community, and permitted the dedication of legal resources to 
        more complex and serious cases.

    As noted, this system worked reasonably well. Some key points as to 
why the conferences seemed to work include:

    1. The request for a safety and health conference had to be made 
within a 10-day period.
    2. Most CLRs did not require the operator to list in writing the 
arguments to be presented at the conference.
    3. Non-Significant & Substantial (non-serious) violations were 
assessed at a set dollar value regardless of the inspector evaluation. 
Few non-S & S violations ever went to conference and very few ever were 
entered in the ALJ system.
    4. In many instances the CLRs were used by the District Managers as 
``instructors of the law'' so that changes in evaluations were passed 
through the MSHA system as a teaching tool to reduce improper 
enforcement. Conversely, the same applied to operators, who learned why 
a violation was appropriately evaluated in a certain manner and how its 
impact on safety could be used to train employees on preventative 
actions.
    5. The CLR made decisions based on the facts of the case presented 
at the safety and health conference.
                         ii. the interim system
    Beginning early in the last decade, MSHA embarked on a ``new 
hiring'' process to replace retiring inspectors. Additionally, as a way 
to accomplish MSHA's mandate to complete ``100 percent'' inspection, 
MSHA determined that a reallocation of resources was needed. A casualty 
of that reallocation was the demise of the consultation process. In 
sum, the agency initiated several actions that, when viewed in total, 
wrecked the previous safety and health conference system and gave rise 
to the situation we find ourselves in today. The following timeline of 
administrative actions shows the evolution of today's flawed system:
Oct. 26, 2006
    MSHA publishes the standard that is intended to be used for 
determining flagrant violations. (PIL I06-III-04 now released as PIL 
I08-III-02) Repeat history is defined as the third allegation of 
unwarrantable failure of the same standard in 15 months.
April 27, 2007
    The new Part 100 civil penalty regulations are released. 
Assessments for violation are dramatically increased. In addition the 
single price penalty for non-serious, non-S&S violations is dropped. 
(Attachments 2 and 3 document the significance of these changes for 
hypothetical, but routinely issued violations, under the old and new 
penalty formulas).
June 14, 2007
    MSHA issues its first list of Pattern of Violation (POV) mines. Two 
of the many selection requirements are: two elevated enforcement 
actions and 10 (surface) or 20 (underground) S&S violations in a 24-
month period.
    Note that on Dec. 7, 2007; June 17, 2008; March 16, 2009; and Oct. 
7, 2009, additional lists of mines that were categorized as potential 
POV mines were released.
Oct. 4, 2007
    MSHA announces the ``100 percent'' plan for meeting mandatory 
inspection requirements. CLRs, who were already postponing citation 
conferences, were now assigned to inspections.
Feb. 4, 2008
    MSHA issues PIL I08-III-1. This PIL essentially formalizes the end 
to manager's conferences. Informally, prior to this date, and for most 
of 2007, conferences were not being scheduled. After this date, all the 
previously requested but unscheduled conferences were placed in the 
administrative system.
                           iv. present system
    On March 27, 2009, MSHA published a new model for conferences. 
Rather than conducting an informal conference prior to receiving an 
assessment and filing with the Commission, the new system requires the 
operator to wait until an assessment is received and file after the 
enforcement action in question is docketed. Now all conferences will 
take place only after civil penalties are proposed and timely 
contested. This means that an operator eager to avoid litigation 
through the conference process must contest the citation, file a 
written request for a conference within 10 days, wait for a period of 
at least 4 to 6 weeks, receive the proposed penalty assessment, contest 
the penalty within 30 days of receipt and then have a conference within 
90-days, unless an extension is requested (usually by MSHA).
    In short, all of the enforcement actions that in the previous 
conference system would not have reached the Commission are now 
included as part of the total number of docketed enforcement actions 
and each such case will remain on the list of contested cases until 
resolved. The delay created by MSHA's changes to the contest system 
increases the number of cases that are being challenged through the ALJ 
system, and it is likely that this number will continue to increase.
    The system also creates other bottlenecks that need to be 
addressed:

     The new system requires the operator to wait for the 
assessment and to formally contest those violations with which he 
disagrees. The Solicitor is then required to respond, and the operator 
may then be required to formally respond (generally through attorneys). 
In some districts, the CLR routinely asks for a 90-day stay so that an 
attempt to settle the case can be made, as is contemplated in the new 
conference system.
     All of the enhanced conferences require some type of legal 
paperwork to the Commission to finalize whatever agreement is reached. 
Again, the more informal pre-assessment system did not include this 
requirement. Clearly the informal system allowed for a more nimble 
system where the operator and CLR could resolve a larger amount of 
cases without burdening the Commission.
     The requirement to contest a citation(s) within 30 days of 
receipt of the penalty often results in operators' challenging all of 
the enforcement actions issued by an inspector within a docket due to 
the sheer volume and the limited time available to examine the 
allegations underlying each enforcement action and the components that 
affect penalty assessments.
                               conclusion
    Beyond the interpretive differences that may exist between an 
operator and inspector, policy choices made by MSHA have also 
contributed to the dramatic increase in the Commission's caseload.
    All these factors combined to create a process that increased the 
number of citations at the same time it eliminated an informal 
procedure for contesting them, forcing operators into a time-consuming, 
expensive adjudicatory process that does nothing to increase mine 
safety. In sum these are:

     The new Part 100 civil penalty rules;
     Failure to maintain an effective ``close-out'' conference 
at the end of each inspection day;
     The loss of an effective safety and health conference 
process;
     The loss of an independent conference decision process;
     Timing and grouping of proposed assessments; and
     MSHA's heightened Pattern of Violation criteria and focus.

    We believe the conditions that gave rise to the ``back-log'' can be 
fixed administratively without legislation. However, doing so requires 
all parties to recognize that:

     All conditions affecting mine safety are abated by the 
operator within the time set by the inspector and prior to adjudication 
of the dispute.
     The convergence of increased enforcement actions, coupled 
with the unofficial and then official cessation of safety and health 
manager's conferences, set in motion a significant increase in 
litigated cases. Unfortunately, operators today have no option but the 
Commission for contesting enforcement actions.
     During the time conferences were unavailable (February 
2008 to March 2009) MSHA issued a policy on flagrant violation 
standards, four patterns of violation cycle letters and a new penalty 
system under Part 100. Also, we believe an evaluation of violation in 
many districts would show a pattern of increased gravity that 
subsequently increased the penalties to a point where a challenge was 
necessary. Filing for a formal hearing using attorneys and cluttering 
the ``Commission'' system is the only avenue available for an operator.
                  changes should be made in the system
    The following are suggested changes that would help unlock the 
logjam at the ``Commission:''

     MSHA should improve the training of inspectors and 
enforcement authorities for recognizing and evaluating a violation. The 
number of enforcement actions being modified is a clear indication that 
inspectors are not being properly trained or supervised on how to 
evaluate a citation. The issue of inspector training was recently 
highlighted in a March 30, 2010 report of the DOL, Office of the 
Inspector General, who found failures in the agency's inspector 
training program.
     Revert to the informal conference (pre-assessment). This 
conference was more timely and, because it was informal, generated 
minimal paperwork compared to the more time-consuming, formal system in 
place today. Unfortunately, many current cases are now handed to 
counsel due to the requirement for a timely response to a 
``Commission'' deadline.
    Provide the CLRs autonomy from the managers in their district. We 
have long advocated a different reporting scheme for the CLRs. Having 
them report, as is currently the case, to the District Manager 
introduces unnecessary conflict. MSHA should create a separate office 
where the CLR could report to a more independent review.
    Provide more realistic timeframes for operators to respond to 
agency notices. The current 30-day response time is insufficient, 
necessitating operators to initiate enforcement action challenges 
merely to protect themselves from responding to individual actions 
because time has expired. Concurrent with this, MSHA should reform the 
manner in which it bundles dockets to ensure they include only the 
enforcement actions and related proposed civil penalties from the same 
inspection.
    Mandate that the CLR and ALJ decisions be used as training tools 
for inspectors so that better evaluations are completed by inspectors. 
Having to ``re-litigate'' settled issues because information is not 
shared on a timely basis across the agency unnecessarily adds to the 
Commission backlog and drains scarce resources.

    The Chairman. Thank you very much, Mr. Watzman.
    Before we start a round of questions, I was told, earlier, 
that many people here had some photographs of their loved ones 
who lost their lives, either in the last event, or maybe some 
previous. You've been very kind to come here. Hold up those 
pictures so we can see who these people are, these real human 
beings. Hold them up. Hold them up for us.
    [Pause.]
    Now, were these all people who lost their lives in the 
Upper Big Branch?
    Voice. They're from different----
    The Chairman. Other events.
    [Pause.]
    Well, thank you for being here. And thank you for----
    Voice. Thank you.
    The Chairman [continuing]. For bringing those pictures.
    Mr. Watzman, let me start with you. You point out, in your 
testimony, that MSHA inspectors have the authority to enter a 
withdrawal order, on the spot, if they see an imminent danger. 
Well, that sounds all well and good, doesn't it? Sounds good. 
It depends on an inspector being there at exactly the right 
place at exactly the right time. How can you do that? You can't 
depend on that. It seems to me, you just can't depend that 
someone's going to be at the right place at the right time to 
prevent an imminent disaster. It seems that we need to have the 
ability to more effectively target operators who routinely put 
their workers at risk, to stop them before they become an 
imminent threat.
    I do disagree with your suggestion that the, quote, 
``Imminent Danger Withdrawal authority accomplishes the same 
result as MSHA's Pattern of Violation authority.''
    In February, in a hearing before the House Committee on 
Education and Labor, you said, ``The Pattern of Violation is in 
the law for a very valid reason.'' Well, it is there for a 
valid reason. It's just that it's not being used, and there 
probably are some legislative things that we need to address, 
in making sure that that pattern can be used more effectively. 
We've got to quit letting people game the system, as they do 
right now, with these Patterns of Violations that go on year 
after year after year, and they never have to do anything, 
because they never get a final adjudication. They never get 
that final adjudication, you see. That's how they game the 
system.
    While the imminent danger can be used, it just seems to me 
that it is not practical to have someone there, exactly the 
right place, at exactly the right time.
    Mr. Watzman. Mr. Chairman, you're exactly right. An 
inspector can't be at a mine every moment the mine is 
operating, nor can they be in every location in the mine. There 
are several factors that come into play.
    One of the things in the title for this hearing is 
``changing the culture within the industry,'' changing the 
culture across the industry. And that's an important element.
    There are additional authorities. The Assistant Secretary 
was entered into a dialogue with several of you earlier about 
the injunctive relief authority. They don't have to wait for 
the pattern. The agency, today, does not have to wait for the 
adjudicatory process.
    My point is, pattern is an important tool, and I'm not 
trying to minimize the significance of that tool, but what I'm 
trying to impress upon you is that there are other tools that 
exist today while we continue to work through this backlog that 
troubles all of us.
    The Chairman. ``Changing the culture,'' is that what you 
said? Well, I don't think Mr. Harris's culture needs to be 
changed, or the workers that work with him--I don't just mean 
him--or Mr. Roberts and the other miners' families out here. 
I've been around coal miners most of my life. They work hard. 
These are hardworking people. And they want to work. They know 
they're providing the energy to run America. They want to take 
care of their families. Some of them want their kids to grow up 
to be lawyers, or Senators--I don't think my dad ever wanted me 
to be one of these, but----
    [Laughter.]
    The Chairman [continuing]. Nonetheless. They care deeply 
about their fellow workers and their health and their welfare. 
It seems that the culture we're talking about changing happens 
to be at the employer level. Is that what you're talking about?
    Mr. Watzman. I think the culture needs to be changed across 
the entirety of the industry. There are many factors that come 
into play when you're talking about culture. It has to start 
from the top down, clearly. That's recognized across 
organizations, be they in mining or outside of mining; that the 
leadership comes from the top down, and that sets the message 
for the entire organization. Those are some of the things that 
we're trying to do across the industry, voluntarily, to take--
and it was discussed earlier--the best of the best. There are 
companies out there that perform, year in and year out, without 
lost-time accidents. We're trying to determine and share what 
they do, and why they're able to accomplish that, and make sure 
that the entirety of the industry has the benefit of that.
    The Chairman. Mr. Roberts, your observation on changing the 
culture. Obviously, there are some mine organizations and 
owners, that, as you pointed out, operate good mines.
    Mr. Roberts. We don't need to change the culture of the 
entire industry, because most CEOs that I know, most presidents 
of companies I know, would never have tolerated what's been 
going on at the Upper Big Branch Mine and some of these other 
Massey--they would have fired people, they would have sent 
people in there and cleaned these mines up themselves. I'll 
give you--I won't call their name, because I didn't ask if I 
could use their name today. I've had CEOs call me that's got 
their names on--one of their mines is on Potential Pattern 
here. He says, ``Cecil, I don't know what's going on there.'' 
They called me and said, ``But, I'm going to find out.'' He 
said, ``I thought I had leadership there that I could depend 
on. If that's not the case, they'll be gone. And I'm telling 
you, I'm going to fix this.'' Now, that's the CEO of the 
company telling me they're going to fix this pattern of 
violations. They're not under it. They were on the list for a 
potential.
    Ninety-five percent of this industry--now, this is a bold 
statement from me on the other end here--you don't have a 
problem like this. But, we have a serious problem, here, with 
about 5 percent of this industry who do not care what laws you 
pass, they don't care who you send to enforce it. They're going 
to fight this, day in and day out. We have got to come to grips 
with this and fix it.
    The Chairman. Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman. I appreciate you 
holding this hearing, which was called ``Creating a Culture of 
Compliance.'' That's what we're trying to do.
    Mr. Addington, I'm sure you're aware that MSHA has, for a 
long time, had an anonymous reporting system for reporting 
hazards, where anybody can use an 800 number or file a report 
online; and as the Web page says, in bold letters, they don't 
need to identify themselves. In your experience with miners, 
are they aware of this anonymous reporting system? Have any of 
the employees you've worked with tried to use this system? And 
what was the result?
    Mr. Addington. Yes and no. Enough miners are not aware of, 
broadly, their statutory safety rights under the act, including 
the 800 number. The problem--it is a nice function, that they 
can anonymously make a complaint. The problem, in reality, is, 
depending on what they're complaining about, it's not very hard 
to figure out, at the mine site, who made that complaint. If 
they're complaining about the belts, it might be the belt 
examiner, that they look for first. A number of the clients 
that we represent, anymore, when they make complaints, they 
make sure their name is on it, because they have more 
protection under the law, they feel, that way.
    In theory, it is a good function. In certain cases, it's 
essential, because miners can be protected, using the 800 
number. In other instances, they're just as well better off 
making the complaint out in the open.
    Senator Enzi. Thank you. That's helpful.
    Mr. Watzman, since 2006, MSHA's budget's increased--and 
that's after the MINER Act passed--has increased by 36 percent. 
MSHA's hired over 100 new coal inspectors. Perhaps due to these 
increased resources, MSHA was able to complete 100 percent of 
their statutorily required inspections in 2008 and 2009, for 
the first time. Why do you think MSHA was unable to properly 
followup on the clearly concerning record of the Upper Big 
Branch Mine? Does MSHA need more flexibility to focus on bad 
actors?
    Mr. Watzman. Senator, I can't speculate as to the thought 
process within the agency, and the actions that they choose to 
take, or not choose to take. What we know is that there are 
mines in this country, given their size and given the 
requirement that MSHA must inspect every underground mine in 
its entirety four times a year. There's a misperception that 
four times a year means an inspector's in the mine 4 days a 
year. There are mines in the country that the quarterly 
inspection begins the first day of the quarter, and the 
closeout is the last day of the quarter, and they roll into the 
next inspection. There are mines in the country where there's 
an inspector in the mine every day that the mine is operating. 
I won't tell you that that's the rule, because it's not. There 
are many mines where that occurs.
    I'd like to leave you with that thought, rather than try to 
speculate on why MSHA did or did not take any followup actions 
based upon the information that they had available to them.
    Senator Enzi. Thank you. I noted that the Upper Big Branch 
Mine had inspectors on the site 180 days in the last year. That 
wasn't every day, but that was pretty significant. When an MSHA 
inspector identifies a hazard and issues a citation, is there 
any way for the operator to avoid abating that hazard?
    Mr. Watzman. No. Under the law the operator has to abate 
the hazard, and the citation fixes an abatement time. 
Oftentimes, it's by the end of the shift; it may be by the end 
of that day, depending upon the conditions that they found. It 
may be an extended abatement period, and the inspector may 
extend the abatement period beyond that originally set, if it 
requires a technologic add-on to a piece of equipment or 
something of that nature. There is a fixed requirement for them 
to abate the citation long before this adjudicatory process 
takes place that we discussed earlier, before the Review 
Commission.
    Senator Enzi. Does contesting it get them out from under 
having to abate it?
    Mr. Watzman. No.
    Senator Enzi. Thank you.
    I'll yield my time.
    The Chairman. Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman.
    I'm really glad, Mr. Addington, that you said what you did 
about if somebody calls a 1-800 number, which is not the 
culture of southern West Virginia or most of West Virginia. We 
don't spend a lot of time calling 1-800 numbers, because the 
assumption is, nothing's going to happen. The most important 
thing you said is, they can trace where that phone call came 
from. I serve on the Intelligence Committee. You don't have to 
have been in NSA or the CIA to know that's a very easy thing to 
do. Making the phone call is, in fact, not being--not reporting 
a danger, is putting your own job in danger. That's what it 
comes down to, to me.
    I'd like to say, to Mr. Watzman, you're the head of a very 
large corporation. I think, as President Roberts just said, 
that about 86 percent of the coal operators that operate 
mines----
    Mr. Watzman. It's higher than that, probably.
    Senator Rockefeller [continuing]. Are good--well, let's 
just say 86 percent--do a good job--try to do a good job. I 
have had those same phone calls that you have. People who are 
on that list, who don't want to be on that list, shocked they 
are on that list, and they want to do something about it. On 
the other hand, there are some that don't, that proudly flaunt 
that they don't, who require production schedules, perhaps 
every 2 hours of every day of every year, to find out not how 
the safety is doing, but how the production is coming along. 
I'm talking fairly specifically here.
    Why is it that you've not stood up in this association? I 
have so many operators coming to me, disavowing any 
relationship with this particular company, which is, in fact, 
involved in all of the recent--Aracoma, Sago, through the 
subsidiary, Upper Branch--all of them. Why is it that part of 
your responsibility isn't to confront those people? Your 
association's responsibility is to confront those people, 
saying, ``You're giving all of us a bad name.'' Or, why is it 
that you wouldn't accept the idea that the board of directors 
should be brought in? Because sometimes the personality of a 
CEO--a president--can overwhelm the presence of a board, 
because they're well paid, they don't have to show up a lot, 
and they don't have the same responsibility. Maybe we ought to 
have something wherein those board members have to go down a 
mine----
    [Laughter.]
    Senator Rockefeller [continuing]. Two or three times a 
year. Maybe we ought to have something like--the safety record 
of that mine has to appear in the SEC report that they submit, 
the safety record in the mine. Well, you can say, ``Well, that 
would have to apply to all industries.'' No industry is like 
the coal industry. No industry is like the coal industry, in 
terms of danger, and in terms of remoteness and intimidation.
    To you Mr. Harris--no, I won't make this to you, because 
you've already been so eloquent on it.
    To you, President Roberts. Intimidation, to me, is at the 
bottom of so much of this.
    Mr. Roberts. There's no doubt.
    Senator Rockefeller. It's not totally provable, but it's an 
utter fact. I've heard so much of it, in these last 40 years 
that I've been working with this problem. Therefore, you have 
to get at intimidation. You can't get at intimidation through 
rules and regulation, through MSHA, through any law that we 
pass. That is the culture of the mines, I think, that you and I 
are talking about. How do you respond to that?
    Mr. Roberts. I think that there are a couple things that I 
would suggest that we might want to think about.
    First of all, the law says, currently, that any miner who 
feels he or she is in danger has a right, legally, to withdraw 
from that particular area. That doesn't happen in these mines, 
because of fear of being fired and blackballed. You lose the 
job you have, and never get another job at Massey, if you 
exercise that right.
    The second thing is, if you call this 1-800 number and they 
find out about it, as Mr. Addington so eloquently put it, 
they're afraid they're going to get fired for that.
    If I were to encourage you to think about something right 
now, I would put criminal penalties on any mine operator who 
disciplines someone--and I don't mean that somebody just didn't 
want to work--if someone legitimately felt they were in danger, 
no one should be forced to work in that condition. No one 
should be fired, Senator, for calling someone to say, ``I think 
this mine's going to explode.'' There are stories here, now--
and people have come to us, and I'm sure they've come to you, 
that said, ``There were grown men here, crying, afraid that 
this mine was going to explode, that's been in the mining 
industry for years.''
    We should be embarrassed--me, in particular, for what I 
do--and all of us, to say, in America, that shouldn't happen. 
We should put someone in jail, whether it's a section foreman 
or mine foreman or the owner of the company, who allows 
something like that to happen. We need to give, somehow, power 
to these workers to say, ``If I call MSHA, I'm not going to get 
fired, because the boss is going to jail if he fires me. Not 
only that, the CEO is subject to going to jail if he fires 
me.''
    You need to somehow convince these workers that the 
government of this country will stand up for them and can 
protect them. Right now, they don't believe it.
    Senator Rockefeller. I thank you, Mr. Chairman.
    The Chairman. Senator Franken.
    Senator Franken. I want to followup on something Senator 
Rockefeller said, Mr. Watzman. You said that mine operators--
that mine safety must be their highest priority. And you said, 
``They must go beyond mere conformity with the law.'' It sounds 
like, from everything we've heard, that Massey had a reputation 
of not doing that, to say the least. Why does the National 
Mining Association tolerate that?
    Mr. Watzman. Senator, I don't think it's a question or an 
issue of tolerating. I'm not sure that there's much value 
gained in ostracizing an individual or an organization. What we 
would rather do, and what we're trying to do, as I said 
earlier, is raise the performance of the entire industry--
through the sharing of best practices, through the voluntary 
awareness programs that we've initiated, through the new Web 
site that we've created, called safetyshare
.org--to make sure that we can disseminate, across the 
industry, the best practices, the best of the best, so that we 
can bring that level of performance up. I'm not sure that 
ostracizing an individual or an organization moves us in that 
direction.
    Senator Franken. Well, if that organization willfully 
defies any--I mean, they're not going to respond to the newest 
Web video on safety--Massey, obviously. I mean, I think that's 
silly, frankly.
    Mr. Addington, when we had Mr. Main here, I kind of said--
this is shocking, this testimony, to me, that these mines 
continue to stay open. And I say, ``Why can't you shut down a 
mine? Or shut down part of a mine?'' And he said, ``Well, 
because the Federal Mine Safety and Health Review Commission 
has made some rulings that made it hard to shut down.'' Is that 
true, in your experience?
    Mr. Addington. Well, it probably is partly true, in some 
respects. As to Pattern of Violations, I don't believe that's 
true.
    If you'll look at Section 104, Pattern of Violations, the 
statute, as it was intended--and if you look at the legislative 
history, it really was intended to be a hammer. Unfortunately, 
through implementing regulations in 1990, it was weakened, and 
then MSHA's own internal criteria that they're using now 
weakened it even more.
    I mean, we've heard, a couple times during the hearing, 
about Potential Pattern of Violations. You won't find that in 
the statute. The statute says nothing about Potential Pattern 
of Violations. It says, ``If a mine is engaged in a Pattern of 
Violations, they get a notice.'' Well, right now, what's been 
happening is, they get a warning that they might eventually get 
a notice. You can see--and then, the criteria for getting off 
that warning is relatively easy, compared to what it takes to 
get on the warning. In the current state, you're talking about 
years before you can get a potential--or get a Pattern of 
Violations Notice.
    Senator Franken. Well, I think we have to examine what we 
can do legally to make sure that mines that are clearly not 
safe are shut down.
    Thank you.
    And thank you, Mr. Chairman.
    The Chairman. Well, I might respond, if I might, Al, on 
that. Let's say a miner sees some potential safety violations 
that he could report that would shut the mine down. Then 
they're out of work. They don't get paid. Right away, you've 
got the conflict. ``Should I report it? It's unsafe, but they 
shut it down, me and my fellow workers are out of work and 
we're out of pay.'' I can understand the conflict that would 
arise, that a miner might feel, in that kind of a situation.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Mr. Chairman, thank you and Ranking Member 
Enzi, for calling this hearing.
    We're grateful to have Senator Rockefeller with us.
    I, first of all, want to express personal condolences for 
all those who lost someone in this tragedy. No words of 
condolence or sorrow can match the grief that so many people 
feel. It is important that we have hearings, like this and 
others, to change policy and to try to do our best to be 
responsive to this tragedy.
    I grew up in a region of Pennsylvania which, for decades, 
more than one generation, was an anthracite coal region--the 
anthracite capital of the world, really. I have a very, very 
limited sense, based upon some reading and some family history 
and things like that, just a fleeting glimpse of what it's like 
to work in a mine, or what it's like to have a family member do 
this. A lot of us come to these issues with a degree of 
humility that we should acknowledge.
    There was an essay written by Stephen Crane, just before 
the turn of the last century, about a mine near my hometown of 
Scranton--a beautiful, haunting essay about all the ways you 
could die in that mine, all the darkness and danger, as only a 
great writer like he could express. At one point in the essay, 
he talks about the ``hundred perils,'' meaning the hundred 
different ways you could die in a mine.
    With all of the modern technology and advancements, I don't 
think any of us could even imagine this kind of a tragedy 
happening today. If it means changing policy, we need to do 
that. If it means amending or adjusting, we've got to do that.
    I apologize for being late, and maybe not being able to 
stay for the next panel, but I want to ask a fundamental, basic 
question that is on the minds, I think, of all of us, and may 
have been answered 13 times already, but repetition around here 
is actually a good thing. That's the basic, fundamental 
question--based upon the experience at the table from our 
witnesses--and we're grateful for your presence and your 
testimony. What does the U.S. Senate--I'll leave the House; 
they've got their own work to do--but, what should the U.S. 
Senate do, and the Administration do, in the next 6 months, to 
make sure that this kind of tragedy does not happen or we 
substantially reduce the likelihood that something like this 
would happen again?
    I'll start with Mr. Roberts. I've known him over the years.
    I'm grateful for your leadership on these issues on behalf 
of working men and women.
    Mr. Roberts. Mr. Senator, thank you.
    There's a number of things I suggest in my testimony. One 
is dealing with the backlog that exists at the Review 
Commission. There's not only a disincentive that doesn't exist, 
there's an incentive to appeal every one of these fines, 
because, if you look at the record, you get a 40-some percent 
reduction on appeal. If you get cited for a million dollars, 
and you're going on appeal--before it's all over, you're going 
to end up paying half that, or less.
    By way of example--and it hasn't come out here, by the 
way--they owe over a million dollars in fines, at Upper Big 
Branch, and they've paid 100-and-some thousand dollars of that, 
the rest of it, I guess, is still sitting somewhere in an 
appeal process.
    We argue that there's no reason why these fines should not 
be paid immediately and held in escrow if they want to appeal. 
That way they do not get the benefit of that money in their 
pocket and encourage them to do this.
    I would point this panel back to 1977 and what this 
Congress wrote, that these fines should be paid in close 
proximity of the time they were issued, because that Congress 
understood that failure to do that would lead to something 
similar to what we have currently. So, we would argue and pay 
those fines quickly.
    The second thing we would argue--I think this whole Pattern 
of Violations has been kicked around here pretty good--it's 
absolute failure, the way it works right now. What should 
happen is, if you're appealing this cases, pay the fines. If, 
indeed, you had been issued these penalties, I think it's time 
for MSHA to take a real close look at you, even though you're 
appealing this, because it may be too late, as was the case at 
Upper Big Branch, while all this is in appeal, while we're 
trying to get to some magical point in our lives here, to say, 
``Oh, yes. That mine should be shut down.''
    I think if, indeed, there's been this many penalties 
issued, then I think we take the step to say, ``All right, the 
district manager needs to send more inspectors more frequently 
into that mine, because there's something wrong here.'' Just 
because you haven't got to the final day when some appeal 
process says you have to pay these fines--it's too late for 
these miners. They've gamed the system here. And I mentioned 
that in my testimony.
    There's going to be someone to argue that, ``Well, we don't 
really need laws,'' or whatever, and I would point out--and I 
said this in the beginning--had the law been obeyed here, we 
would not have had this explosion and 29 miners losing their 
life.
    However, I would point out, good laws work. We just 
recently celebrated the 40th anniversary of the 1969 Coal Mine 
Health and Safety Act that came effective in January 1970.
    Just something for you to think about. The 40 years prior 
to that act, 32,000 miners lost their lives--over 32,000. The 
40 years after, 3,200. Those who say, ``Oh, gee, laws don't 
work,'' that's not true. Those who say, ``Let's do away with 
laws and let us be about the business of doing whatever we 
want,'' well, that's what we did the 40 years before we passed 
the 1969 Act, and it didn't work.
    I've got a lot of ideas about this, but, I would like to 
give the other panel members some chance, here.
    Senator Casey. Thank you.
    The Chairman. Senator Rockefeller wanted to make one more 
comment, and I just have a certain question for Mr. Harris.
    Senator Rockefeller. Thank you, Mr. Chairman.
    We've been talking a lot about the culture, and I think 
it's important to point out that, I would say, 98 percent of 
West Virginians, of Pennsylvanians, of Ohioans, Wyomingites----
    [Laughter.]
    Have never been down a mine. What people have to understand 
is, this isn't sort of a public place we're talking about. This 
is 35 minutes, 45 minutes up a beautiful hollow, with lovely 
streams and things, and then all of a sudden you come to this 
enormous mine. It's a private, private life. Decisions are made 
by very few, and the effects are very many.
    The miners are put in an impossible cultural position, 
because if they get offered payment of $65,000 or $70,000, what 
are they going to do?
    Voice. Fight to keep their job.
    Senator Rockefeller. Are they going to say, ``No, not 
interested?'' That's not the way it works. When they--and they 
have families, so they have an obligation to the families. 
They've got to survive, and they've got to take care of their 
families, as well as to keep the lights on in America. It isn't 
really a choice for them, this culture.
    To me, the culture has to start from the top. I'm going to 
give you an example. I'll be short, Mr. Chairman, as I always 
am.
    [Laughter.]
    I was Governor, for 8 years, of West Virginia. We were 
having unacceptably high death rates in our mines. I decided 
that, as chief executive--that is the CEO--that I would go to 
each of the mines--where the mine inspectors would gather after 
there had been a death. That had never happened before. There I 
was sitting, as they were trying to explain to each other what 
happened and who should have done what. Things happened. 
Everything was different, because the culture change took place 
at the top.
    Now, I'm not saying that I changed the world, but it did 
have an effect.
    Voice. That's true.
    Senator Rockefeller. That's why, in a secret world, at the 
end of 35 miles of hard driving, and then 1,000 to 2,000 feet 
underground, where only a few people from that State, or from 
any State, have ever been, it has to come from the top. It has 
to come from the top.
    Senator Enzi. And, Mr. Chairman, related to that, yes, I 
have been down in an underground mine, but I know that most 
people have not.
    The Chairman. Because we're Senators.
    Senator Enzi. There's a fellow from West Virginia--I don't 
know that he still lives there--named Homer Hickam, who's 
written some great books that give you a little bit of an 
understanding of what it is. Right after 2001, he wrote a book 
called, ``We Are Not Afraid,'' which talks about the culture of 
the miners, as well as, perhaps, the way that Americans ought 
to view the terrorism attacks that we've had. He also has a 
book, called ``The Red Helmet,'' that even gets into some mine 
accidents. I'd recommend those to people that haven't been in a 
mine.
    Thank you.
    The Chairman. Thank you all.
    Listening to everybody--I've been respectful of not trying 
to interfere, but hearing all the questions, and hearing the 
comments and stuff, I keep thinking, ``What's Harris got to say 
about this? What's a guy who actually goes in the mines, and 
works in those mines''--you got any last thing you want to say, 
here?
    Mr. Harris. Yes. I really believe that those people that 
died, didn't have to die. It didn't have to happen. It could 
have been avoided. That's what I like about being in a union 
mine. You have representation all the time, you don't have to 
be scared to call that 800 number. You don't have to have that 
fear.
    The coal operators, they want to get the work done safely. 
They want you to go home safely. They want you to return to 
your families. You don't have that in nonunion mines. You don't 
have it. Inspectors have told me that they have asked for 
representation at the nonunion mines, some of the men that walk 
with them. They say, ``No, because we going to get fired if we 
do.'' I mean, you shouldn't have to live like that. To be on 
this side of it, it's really worth it, because you have voice.
    And if they're going to shut the mines down, they're going 
to shut the mines down. It doesn't matter what you say or do. 
If Massey's going to shut the mines down, he's going to shut it 
down anyway. He's going to lay everybody off anyway, so it 
doesn't matter. You do so much for him, then he's going lay you 
off. He doesn't care about you, all he cares about is what he's 
getting out of there--coal and that money. He wants to be the 
lead coal producer in the southern Appalachian. And as long as 
he can be that, he doesn't care about anybody. That's all I 
have to say.
    The Chairman. Well, Mr. Harris, I think that is a great 
final word.
    Thank you for this panel.
    We'll now bring our next panel up. Panel three is David 
Michaels. Dr. Michaels is Assistant Secretary of Labor for 
Occupational Safety and Health. He's a nationally recognized 
leader in the scientific community's efforts to protect the 
integrity of the science that forms the basis of our public-
health, environmental, and regulatory policies. Before coming 
to OSHA, he was professor of environmental and occupational 
health at the George Washington University School of Public 
Health and Health Services. From 1998 to 2001, Dr. Michaels 
served as the Assistant Secretary of Energy for Environment, 
Safety, and Health.
    Mr. Michaels, we'll just hold on here a second until we get 
some calm restored here.
    We're now shifting over to OSHA. I just might say, 
parenthetically, that this panel and the next panel, now, we're 
going to be shifting for MSHA to OSHA, and focusing on the 
Occupational Safety and Health program.
    [Pause.]
    Could we please take conversations out in the hall? If you 
really need to talk, I'd appreciate it. We really do have to 
move along here.
    OK. Mr. Michaels, welcome to the committee. Your statement 
will be made a part of the record in its entirety. If you could 
sum it up in 5 minute, we would deeply appreciate it.
    Mr. Michaels, welcome.

 STATEMENT OF DAVID MICHAELS, PhD, MPH, ASSISTANT SECRETARY OF 
    LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, DC

    Mr. Michaels. Thank you, Chairman Harkin, Ranking Member 
Enzi, members of the committee.
    Today, we are meeting under the shadow of three recent 
tragedies that have captured the headlines and the hearts of 
the American people: the almost unimaginable deaths of 29 
miners in West Virginia; the loss of seven refinery workers in 
Washington State; and the 11 workers still missing from the 
Deepwater Horizon.
    We are also here in the knowledge that 14 Americans fail to 
come home from work to their families every single day of the 
year. We must think seriously and act courageously to ensure 
that OSHA has the tools it needs to enforce safe working 
conditions. If we are to fill Secretary of Labor Hilda Solis' 
vision of ``good jobs for everyone,'' we must have effective 
laws that will ensure that all employers do the right thing. 
Good jobs are safe jobs. American workers still face 
unacceptable hazards.
    Yesterday, the Labor Department released its spring 
regulatory agenda, which includes a new enforcement strategy: 
plan, prevent, protect. This new approach would require each 
employer to do what many employers do now; to implement their 
own Injury and Illness Prevention Program tailored to the 
actual hazards of that employer's worksite. We're asking them 
to find and fix their hazards.
    Last week, we announced a new initiative to implement long 
overdue administrative changes to our penalty formulas, which 
will have the effect of raising OSHA penalties, while 
maintaining our policy of reducing penalties for small 
employers and those acting in good faith. We will implement a 
new severe-violator enforcement program, increasing our focus 
on repeatedly recalcitrant employers.
    While important, these two administrative measures are 
severely limited by the constraints of current OSHA law. The 
Administration supports the Protecting America's Workers Act, 
PAWA, which makes meaningful and substantial statutory changes 
to OSHA's penalty structure and enforcement program.
    The most serious obstacle to effective OSHA enforcement is 
the very low level of civil penalties allowed under our law, as 
well as our weak criminal sanctions. Currently, the maximum 
penalty for serious violations, those that pose a substantial 
probability of death or serious physical harm, is only $7,000. 
OSHA penalties have not been raised since 1990. PAWA indexes 
civil penalties to the consumer price index, to ensure the new 
penalty structure does not degrade over time.
    It is a sad truth that, for some irresponsible employers, 
nothing focuses attention like the possibility of going to 
prison. Currently, successful criminal prosecution, under the 
OSH Act, only results in a misdemeanor. Under PAWA, it is a 
felony.
    Another obstacle to protecting workers is that now if the 
employer contests a violation, OSHA cannot force that employer 
to fix the hazard until after the contest is decided. This 
loophole in the law has fatal consequences. OSHA has identified 
at least 30 cases, over the last 10 years, in which workers 
have been killed during the contest period after the citation 
was filed. PAWA would require employers to abate serious, 
willful, and repeat hazards after the citation is issued.
    We know that OSHA works better if workers are actively 
involved in protecting their health and safety. If employees 
fear they will be retaliated against for participating in 
safety and health activities, they are not likely to do so. 
OSHA's whistleblower provisions are 40 years old, and lag far 
behind similar provisions in law that provide stronger worker 
protections and have been enacted with strong bipartisan 
support.
    PAWA provides workers with a private right of action. It is 
critically important that, if an employer fails to comply with 
an order providing relief, both DOL and the worker can file a 
civil action. PAWA also codifies a worker's right to refuse 
unsafe work, and prohibits employer retaliation against 
employees for reporting injuries or illnesses.
    OSHA recognizes the importance of family participation. 
While it is OSHA's policy to talk to families during the 
investigation process, and to inform them about our citation 
procedures and settlements, this policy has not always been 
implemented consistently and in a timely manner. PAWA would 
place into law the right of a victim or family member to meet 
with OSHA regarding the investigation, and receive copies of 
the citation at the same time as the employer, at no cost. PAWA 
would also enable victims to be informed of any notice of 
contest, and to make a statement before an agreement is made to 
withdraw or modify a citation.
    Finally, it is a little-known fact that State and local 
employees who respond to our emergencies, repair our highways, 
clean and treat our drinking and waste water, pick up our 
garbage, take care of our mentally ill, provide social 
services, and staff our prisons--they are not covered by OSHA, 
unless the State in which they work chooses to do so, and only 
25 States have elected to do so. Public-sector workers perform 
work that is as dangerous as those in the private sector, and, 
according to the Bureau of Labor statistics, they have a higher 
injury rate than private-sector workers. Public employees 
deserve to be safe on the job. The days of treating public 
employees as second-class citizens must come to an end.
    Mr. Chairman, as we prepare to observe Workers Memorial Day 
tomorrow, we realize that our work is far from done. To quote 
from President Obama's statement, in the wake of the Upper Big 
Branch mine disaster,

          ``We owe all workers action. We owe them 
        accountability. We owe them assurance that, when they 
        go to work every day, they are not alone. They ought to 
        know that, behind them, is a government that is looking 
        out for their safety.''

    I join with you, Mr. Chairman, in dedicating ourselves to 
bringing about the day when there will be no more workers 
memorialized for dying on the job.
    Thank you again for this opportunity to testify.
    [The prepared statement of Mr. Michaels follows:]
             Prepared Statement of David Michaels, PhD, MPH
    Chairman Harkin, Ranking Member Enzi, members of the committee, I 
want to thank the committee for inviting us here today. It is a sad, 
but true commentary on human nature and the political system that great 
advances are all too often made only in the shadow of great tragedy.
    Today, we are meeting under the shadow of two recent tragedies that 
have captured the headlines and the hearts of the American people--the 
almost unimaginable deaths of 29 miners in West Virginia, and the loss 
of seven refinery workers in Washington State. We are also here today 
in the knowledge that 14 Americans fail to come home from work to their 
families every single day of the year. In addition, tens of thousands 
die every year from workplace disease and over 4.6 million workers are 
seriously injured on the job. Most of these workers die one at a time, 
far from the headlines and nightly news, remembered only by their 
family, friends and co-workers. I have here before me a pile of news 
clips collected over the last couple of weeks describing workers, men 
and women, young and old who have been crushed, electrocuted, burned, 
or who have died in falls, trench collapses and forklift accidents.
    These are the invisible relentless daily tragedies of the American 
workplace. Thank you for inviting us here today to work with you to 
find ways to stop this senseless sacrifice in American workplaces.
    Until 1970, although certain industry-specific protections such as 
the Coal Mine Health and Safety Act of 1969 existed, there was no 
national guarantee that workers throughout America would be protected 
from workplace hazards. In that year the Congress enacted a powerful 
and far-reaching law--the Occupational Safety and Health Act of 1970 
(OSH Act).
    The results of this law speak for themselves. The annual injury/
illness rate among American workers has decreased by 65 percent since 
1973. Employers, unions, academia, and private safety and health 
organizations pay a great deal more attention to worker protection 
today than they did prior to enactment of this landmark legislation.
    The promise of the act, ``to assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions'' is needed today as much as it was 40 years ago. Yet the 
means provided by the act to achieve that worthy goal are tragically 
outdated and inadequate. It has now been almost 40 years since the 
Occupational Safety and Health (OSH) Act was passed, and aside from an 
overdue increase in penalties almost 20 years ago, no significant 
change has been made to this law. There are far too many obstacles that 
prevent effective enforcement of the law, far too many loopholes that 
allow unscrupulous employers to continue to get away with endangering 
workers. This must stop.
    Now is the time to think seriously and act courageously to ensure 
that OSHA and MSHA have the tools they need to enforce safe working 
conditions, and that this government develops effective incentives that 
will ensure all employers do the right thing. If we are to fulfill 
Secretary Solis' vision of Good Jobs for Everyone, we must address 
these urgent problems. Good jobs are safe jobs, and American workers 
still face unacceptable hazards.
    We all know that most businesses want to do the right thing and 
will expend the necessary resources to ensure that their workplaces are 
safe. We need to make sure that they have the information and 
assistance they need to protect their employees. There are still far 
too many businesses in this country who continue to cut corners on 
safety, endangering the health and safety of their workers. As 
Secretary Solis pointed out to President Obama in her report last week 
on the Upper Big Branch mine disaster, she is committed to taking 
action now to stop reckless mine operators and other business owners 
who risk the lives and health of their workers. Too often, we see 
employers who assess the benefits of refusing to comply with the law 
and compare them to the costs of complying with the law. If they find 
that the costs of compliance outweigh the penalties they will face if 
caught, they opt to gamble with their workers' lives. This is a 
``catch-me-if-you-can'' approach to safety and health. It is what we 
saw in action at Upper Big Branch and what we at OSHA see far too often 
in the workplaces we visit.
    We know that we do not have, nor will we ever have enough 
inspectors to be in every workplace often enough to make sure that all 
workplace safety laws, rules and best practices are followed. 
Therefore, we need to find ways to leverage our resources to ensure the 
goals of the OSH Act are met. Our mission must not be to punish or 
react, but to require employers to plan, prevent and protect.
    To do this effectively, major changes need to be made in the act. 
The Occupational Safety and Health Act is almost 40 years old. Since 
enactment, the act has not been significantly modified in all of those 
years and has not kept up with many of the significant advances made in 
other laws, including consumer and worker protections.
    OSHA has already taken broad steps toward this goal. Just 
yesterday, the Labor Department released its Spring regulatory agenda 
which includes a new enforcement strategy--Plan/Prevent/Protect--an 
effort designed to expand and strengthen worker protections through a 
new OSHA standard that would require each employer to implement an 
Injury and Illness Prevention Program tailored to the actual hazards in 
that employer's workplace.
    Instead of waiting for an OSHA inspection or a workplace accident 
to address workplace hazards, employers would be required to create a 
plan for identifying and remediating hazards, and then implement this 
plan. Essentially, through this common sense rule, we will be asking 
employers to find the safety and health hazards present in their 
facilities that might injure or kill workers and then fix those 
hazards, also known as ``Find and Fix.'' Workers would participate in 
developing and implementing such a plan and evaluating its 
effectiveness in achieving compliance. OSHA will soon initiate 
rulemaking on this standard with stakeholder meetings, the first to 
take place in June in New Jersey.
    Additionally, we are doing everything we can within the limits of 
our law to expand and strengthen workplace protections. Last week, we 
announced a new initiative to implement long-overdue administrative 
modifications to our penalty formulas, which will have the effect of 
raising OSHA penalties while maintaining our policy of reducing 
penalties for small employers and those acting in good faith. These 
changes will be well-advertised so that all employers are aware of the 
new policies. However, OSHA believes any administrative changes we are 
able to make would still be inadequate to compel bad employers to abate 
serious hazards. These steps are an effort to do the best with the 
outdated, antiquated tools we have. But, we can only do so much within 
the constraints of the current OSH Act.
    We also announced that OSHA will implement a new Severe Violators 
Enforcement Program, increasing our focus on repeatedly recalcitrant 
employers, which will be discussed in more detail later in my 
testimony.
    While important, both of these administrative measures are severely 
limited by constraints of current law. To adequately plan, prevent and 
protect, the law governing OSHA must be updated to reflect the 21st 
Century.
    The Administration supports the Protecting America's Workers Act 
(PAWA), which makes meaningful and substantial statutory changes to 
OSHA's penalty structure and enforcement program. PAWA, coupled with 
our vigorous ``plan/prevent/protect'' regulatory agenda, will begin to 
make the ``catch-me-if-you-can'' approach to workplace safety a thing 
of the past.
                               penalties
    The most serious obstacle to effective OSHA enforcement of the law 
is the very low level of civil penalties allowed under our law, as well 
as our weak criminal sanctions.
    While most employers understand the business case and the moral 
case for providing a safe workplace, many do not and the threat of 
penalties plays a major incentive in forcing them to comply with the 
law. The deterrent effects of these penalties are determined by both 
the magnitude and the likelihood of penalties. Swift, certain and 
meaningful penalties provide an important inducement to ``do the right 
thing.'' However, OSHA's current penalties are not large enough to 
provide adequate incentives. Although OSHA can, in rare circumstances 
involving large numbers of egregious violations, generate large 
penalties, most OSHA fines are far too small to serve as anything more 
than an inconvenient cost of doing business.
    I also want to stress here that OSHA enforcement and penalties are 
not just a reaction to workplace tragedies; they serve an important 
preventive function. Just as the fear of a ticket and large fine keeps 
the average driver from running red lights to make it to the meeting 
for which he or she is late, OSHA inspections and penalties must be 
large enough to discourage employers from cutting corners or 
underfunding safety programs to save a few dollars. Even the largest 
fines, when levied on a giant corporation, have little effect on the 
company's bottom line.
    Congress has increased monetary penalties for violations of the OSH 
Act only once in 40 years despite inflation during that period. As a 
result, unscrupulous employers often consider it more cost-effective to 
pay the minimal OSHA penalty and continue to operate an unsafe 
workplace than to correct the underlying health and safety problem.
    Currently, serious violations--those that pose a substantial 
probability of death or serious physical harm to workers--are subject 
to a maximum civil penalty of only $7,000. Let me say that again, a 
violation that causes a ``substantial probability of death or serious 
physical harm'' brings a maximum penalty of only $7,000. Willful and 
repeated violations carry a maximum penalty of only $70,000.
    After factoring in reductions for size, good faith and history, as 
well as other factors, the current average OSHA penalty for a serious 
violation is only around $1,000. The median initial penalty proposed 
for all investigations conducted in fiscal year 2007 in cases where a 
worker was killed was just $5,900. Clearly, OSHA can never put a price 
on a worker's life and that is not the purpose of penalties--even in 
fatality cases. OSHA must, however, be empowered to send a stronger 
message in cases where a life is needlessly lost than the message that 
a $5,900 penalty sends.
    The current penalties do not provide an adequate deterrent. This is 
apparent when compared to penalties that other agencies are allowed to 
assess. For example, the Department of Agriculture is authorized to 
impose a fine of up to $130,000 on milk processors for willful 
violations of the Fluid Milk Promotion Act, which include refusal to 
pay fees and assessments to help advertise and research fluid milk 
products. The Federal Communications Commission can fine a TV or radio 
station up to $325,000 for indecent content. The Environmental 
Protection Agency can impose a penalty of $270,000 for violations of 
the Clean Air Act and a penalty of $1 million for attempting to tamper 
with a public water system. Yet, the maximum civil penalty OSHA may 
impose when a hard-working man or woman is killed on the job--even when 
the death is caused by a willful violation of an OSHA requirement--is 
$70,000.
    In 2001 a tank full of sulfuric acid exploded at an oil refinery in 
Delaware, killing Jeff Davis, a worker at the refinery. His body 
literally dissolved in the acid. The OSHA penalty was only $175,000. 
Yet, in the same incident, thousands of dead fish and crabs were 
discovered, allowing an EPA Clean Water Act violation amounting to $10 
million. How can we tell Jeff Davis' wife Mary, and their five 
children, that the penalty for killing fish and crabs is many times 
higher than the penalty for killing their husband and father?
    The Protecting America's Workers Act makes much-needed increases in 
both civil and criminal penalties for every type of violation of the 
OSH Act and would increase penalties for willful or repeat violations 
that involve a fatality to as much as $250,000. These increases are not 
inappropriately large. In fact, for most violations, they raise 
penalties only to the level where they will have the same value, 
accounting for inflation, as they had in 1990.
    Unlike most other Federal enforcement agencies, the OSH Act has 
been exempt from the Federal Civil Penalties Inflation Adjustment Act, 
so there have not even been increases in OSHA penalties for inflation, 
which has reduced the real dollar value of OSHA penalties by about 39 
percent. In order to ensure the effect of the newly increased penalties 
do not degrade in the same way, PAWA indexes civil penalties to 
increases or decreases in the Consumer Price Index (CPI). These penalty 
increases are necessary to create at least the same deterrent that 
Congress originally intended when it passed the OSH Act almost 40 years 
ago. Simply put, OSHA penalties must be increased to provide a real 
disincentive for employers not to accept injuries and worker deaths as 
a cost of doing business.
    Throughout its history, OSHA has faced the problem of employers who 
have allowed multiple serious and repeated violations to exist across 
several of their workplaces. It isn't only the coal mining industry 
that faces employers like Massey Energy that rack up dozens or hundreds 
of violations throughout the corporation.
    Sometimes even large penalties are ineffective. After OSHA cites 
these companies at one location, workers often continue to get hurt or 
die from the same kinds of hazards at another site within the same 
company. OSHA has only limited tools to require recalcitrant employers 
to abate life-threatening hazards. As I stated earlier, OSHA issued its 
new Severe Violators Enforcement program (SVEP) last week. SVEP is a 
refinement of the Enhanced Enforcement Program, designed as a 
supplemental special enforcement tool to address recalcitrant employers 
who fail to meet their obligations under the OSH Act. This program 
includes more mandatory inspections of an identified company; mandatory 
follow-up inspections, including inspections at other locations of the 
same company; and a more intense examination of an employer's history 
to assess if there are systemic problems that would trigger additional 
mandatory inspections. This is about as close as OSHA can come, within 
the limits of our law, to MSHA's ``pattern of violations'' system.
    There are a number of improvements to OSHA's law that could allow 
us to implement a pattern of violations authority that would facilitate 
more severe penalties when a pattern is identified. Additional 
authority to propose higher penalties for ``multiple repeat 
violations'' could enable OSHA to address situations in which companies 
demonstrate consistent and repeated disregard for the lives of their 
employees.
    In addition, under current law, OSHA cannot cite a repeat violation 
if the original violation occurred in one of the Nation's 21 ``State-
Plan'' States which administer their own OSHA programs. Permit me to 
explain this. If a roofer who was not provided fall protection is 
killed after falling from a roof in Ohio, OSHA will investigate and 
determine, among other things, if other employees of that contractor 
had ever been injured or killed under similar circumstances. If OSHA 
had previously cited that employer for violations of our fall 
protection rules in a State where we have jurisdiction, we could cite 
the employer for a repeat violation. However, if the previous violation 
had occurred in nearby Indiana or Kentucky, perhaps just a few miles 
from the site of the fatality, the law states that we could not 
classify the events around the fatality as a repeat violation, even if 
the original violation involved a worker who was killed under identical 
circumstances--simply because they were in State-Plan States. This 
defies any common sense definition of a repeat violation.
    Enhanced civil penalties and an improved mechanism for going after 
repeatedly recalcitrant employers are much needed. Also needed is a 
much more effective way of addressing the most egregious employer 
wrongdoing. The solution here is enhanced criminal sanctions and the 
real threat of incarceration for employers whose knowing violation of 
OSHA standards leads to the death or serious bodily injury of an 
employee. It is a sad truth that nothing focuses attention like the 
possibility of going to prison. Unscrupulous employers who refuse to 
comply with safety and health standards as an economic calculus will 
think again if there is a chance that they will go to prison for 
ignoring their responsibilities to their workers.
    Under the OSH Act, criminal penalties are currently limited to 
those cases where a willful violation of an OSHA standard results in 
the death of a worker and to cases of false statements or 
misrepresentations. The maximum period of incarceration upon conviction 
for a violation that costs a worker's life is 6 months in jail, making 
these crimes a misdemeanor.
    The criminal penalty provisions of the OSH Act have never been 
updated since the law was enacted in 1970. The criminal provisions in 
the OSH Act are weaker than virtually every other safety and health and 
environmental law. Most of these other Federal laws have been 
strengthened over the years to provide for much tougher criminal 
sanctions. The Clean Air Act, the Clean Water Act, and the Resource 
Conservation and Recovery Act all provide for criminal prosecution for 
knowing violations of the law, and for knowing endangerment that places 
a person in imminent danger of death or serious bodily harm, with 
penalties of up to 15 years in jail. There is no prerequisite in these 
laws for a death or serious injury to occur. Other Federal laws provide 
for a 20-year maximum prison sentence for dealing with counterfeit 
obligations or money, or mail fraud; and for a life sentence for 
operating certain types of criminal financial enterprises.
    Simply put, serious violations of the OSH Act that result in death 
or serious bodily injury should be felonies like insider trading, tax 
crimes, customs violations and anti-trust violations.
    PAWA would also amend the criminal provision of the OSH Act to 
change the requisite mental state from ``willfully'' to ``knowingly.'' 
Most Federal environmental crimes and most Federal regulatory crime use 
the term ``knowingly,'' rather than ``willfully.'' Under a ``knowing'' 
standard, the government must only prove that the defendant had 
knowledge of the facts that constitute the offense, i.e., that the 
conduct at issue was not accidental or a mistake. Harmonizing the 
language of the OSH Act with that of these other statutes would add 
clarity to the law. PAWA would do that through the provision that any 
employer is subject to criminal prosecution if that employer 
``knowingly'' violates any standard, rule or order and that the 
violation results in death or serious bodily injury to an employee. 
OSHA strongly supports this change in the law.
                        abatement during contest
    Another major obstacle to protecting workers in the OSH Act is that 
OSHA cannot force employers to fix an identified workplace hazard if 
the employer has contested the violation until after the contest is 
decided.
    When OSHA identifies a serious workplace hazard, one capable of 
killing or seriously injuring a worker, we cite that employer. 
Employers then have the right to contest that citation. This is as it 
should be. The problem--often the fatal problem--with the law as 
currently written, is that the employer is under no obligation to fix 
the unsafe condition until the contest is settled, which can be months, 
or even years, after the initial citation. Workers are, therefore, left 
without protection from identified health and safety hazards.
    We don't tell truck drivers to continue operating on faulty brakes 
for weeks or months until their court appeal is heard. Why should we 
allow employers to continue operating dangerous machinery for months or 
years after the hazard has been identified and cited?
    The OSH Act can allow dangerous conditions to exist for many years 
while litigation is under way. For example, in 1994, OSHA cited a 
Dayton Tire facility in Oklahoma City for multiple violations of the 
Lock Out/Tag Out standard that had already killed one worker. An 
Administrative Law Judge (ALJ) affirmed the violations almost 3 years 
later, and the Occupational Safety and Health Review Commission then 
accepted the case for review, but has still not issued a decision. In 
2006, 12 years after being cited, Dayton closed the facility without 
ever abating the violations.
    This loophole in the law has had fatal consequences. OSHA has 
identified at least 30 cases between fiscal year 1999 and fiscal year 
2009 where workers have been killed during the contest period after a 
citation was filed. The only situation worse than a worker being 
injured or killed on the job by a senseless and preventable hazard, is 
having a second worker needlessly felled by the same hazard.
    The lack of any mechanism to force employers to abate hazards 
during the contest period also contributes to the low level of OSHA 
penalties. OSHA inspectors are primarily interested in making sure that 
workers are safe, not in collecting fines. Many employers have learned 
that by threatening to appeal even the most irrefutable hazard, they 
force OSHA staff to choose between immediate abatement of a life-
threatening hazard, or pursuing violation through a lengthy appeal. 
Faced with a situation where it may be months or years until a 
contested citation is settled and a hazard is fixed, OSHA is often 
forced to settle at a much lower level than would be deserved in order 
to get faster abatement of the hazard so that workers are safe.
    OSHA supports a provision of PAWA that would require employers to 
abate serious, willful and repeat hazards after a citation is issued 
during the contest period. This provision would also enable OSHA to 
issue ``failure to abate'' notices at a workplace with a citation under 
contest, enhancing the right of workers to be protected from the most 
egregious workplace hazards.
    Now, it has been argued that mandated abatement during the contest 
period is ``unjustified'' and ``an outrageous trampling of due process 
rights.'' Those who feel this way should know that a similar 
requirement has existed in the mine safety laws for 40 years without 
wreaking havoc in the mine industry. OSHA is merely asking to provide 
general industry workers with the same protection that miners have 
possessed for decades. In weighing the balance between employee 
protection and employer contest rights, employee safety should come 
first.
                        whistleblower protection
    OSHA will never be able to inspect every workplace every day, or 
even every year. Far from it. Which is why Congress designed the OSH 
Act to rely heavily on workers to help identify hazards at their 
workplaces. If employees fear that they will lose their jobs or 
otherwise be retaliated against for participating in safety and health 
activities or expressing concern, they are not likely to do so. 
Secretary Solis flagged the importance of robust whistleblower 
protections in preventing workplace disasters by including a 
recommendation to improve the whistleblower provisions of the Mine Act 
in her report to the President last week.
    The OSH Act was one of the first safety and health laws to contain 
a provision for protecting whistleblowers--section 11(c). Forty years 
ago, that provision was innovative and forward looking. In 2010, 
however, it is a legal dinosaur. It is clear that the OSH Act's 
whistleblower provision is in dire need of substantial improvement. 
Notable weaknesses in section 11(c) include: inadequate time for 
employees to file complaints; lack of a statutory right of appeal; lack 
of a private right of action; and OSHA's lack of authority to issue 
findings and preliminary orders, so that a complainant's only chance to 
prevail is through the Federal Government filing an action in U.S. 
District Court. Achieving the Secretary's goal of Good Jobs for 
Everyone includes strengthening workers' voices in their workplaces. 
Without robust job protections, these voices may be silenced.
    In recent years, a number of more modern, more effective 
whistleblower protections have passed the Congress with strong bi-
partisan support. Additionally, there has been bi-partisan consensus 
for the past 25 years on the need for uniform whistleblower protections 
for workers in every industry--making the different whistleblower 
statutes more consistent and equitable. This Administration supports 
uniformity as well.
    The Protecting America's Workers Act expands the OSH Act's anti-
retaliation provisions. The bill codifies a worker's right to refuse to 
perform unsafe work, protects employees who refuse work because they 
fear harm to other workers, prohibits employer policies that discourage 
workers from reporting illnesses or injuries, prohibits employer 
retaliation against employees for reporting injuries or illnesses, and 
grants workers the right to further pursue their case if OSHA does not 
proceed in a timely fashion.
    Additionally, current laws give workers only 30 days to file an 
11(c) complaint. It often takes workers more than 30 days to learn what 
the law says and how to file a complaint. Many complainants who might 
otherwise have had a strong case of retaliation have been denied 
protection simply because they did not file within the 30-day deadline. 
For example, we received an 11(c) complaint from a former textile 
employee who claimed to have been fired for reporting to management 
that he had become ill due to smoke exposure during the production 
process. The worker contacted OSHA to file an 11(c) complaint 62 days 
after he was fired, compelling OSHA to dismiss the case as untimely 
under existing law. PAWA would increase the existing 30-day deadline 
for filing an 11(c) complaint to 180 days, bringing 11(c) more in line 
with some of the other whistleblower statutes enforced by OSHA, and 
greatly increasing the protections afforded by section 11(c).
    The private right of action is another key element of whistleblower 
protections that is lacking in OSHA's current 11(c) provision. It is 
critically important that, if an employer fails to comply with an order 
providing relief, both DOL and the complainant be able to file a civil 
action for enforcement of that order in a U.S. District Court. Most of 
the other whistleblower provisions that OSHA enforces have this private 
right of action provision--certainly the OSH Act should be amended to 
include it and PAWA does just that.
    Finally, PAWA would codify a number of OSHA's high standards for 
professionalism and transparency in conducting whistleblower 
investigations that are of critical importance to this Administration. 
For example, PAWA requires OSHA to interview complainants and to 
provide complainants with the respondent's response and the evidence 
supporting the respondent's position. PAWA affords complainants the 
opportunity to meet with OSHA and to rebut the employer's statements or 
evidence. While we train our investigators on the critical importance 
of conducting thorough interviews with complainants and involving 
complainants in the rigorous testing of proffered employer defenses, we 
believe that requiring these investigative steps by statute could only 
assist OSHA in its mission of providing robust protection to 
occupational safety and health whistle blowers.
    These legislative changes in the whistleblower provisions are a 
long-overdue response to deficiencies that have become apparent over 
the past four decades. This legislation makes good on the promise to 
stand by those workers who have the courage to come forward when they 
know their employer is cutting corners on safety and health and 
guarantees that they don't have to sacrifice their jobs in order to do 
the right thing. OSHA has the responsibility of administering 16 other 
whistleblower statutes in addition to the provision in its own 
governing statute. The fact that almost all of those other statutes are 
more protective to workers is a fact that needs to be addressed now, 
and this committee has been involved, with bipartisan support, in 
passing many of those whistleblower laws that provide far greater 
protection than OSHA's law.
    This hearing provides OSHA with the opportunity to identify areas 
where the Agency and the Administration have identified needed 
legislative changes that go beyond those proposed in PAWA. These 
changes would strengthen the OSH Act and provide an added deterrent to 
businesses that ignore workplace safety and health hazards.
    I would propose amending the OSH Act to provide for assessment of 
civil penalties against employers who violate the whistleblower 
provisions. Currently, while an employer found to be discriminating 
against an employee must make the employee whole again, there is no 
provision for civil penalties against employers. The provisions are not 
in the current version of PAWA but similar provisions are included in 
the S-MINER Act that was passed in the House of Representatives in 
2008. Under this provision, any employer found to be in violation of 
Section 11(c) of the Act would be subject to civil penalties of not 
less than $10,000 and not more than $100,000 for each occurrence of a 
violation.
    Finally, as conclusion of these cases can often take many months, a 
provision should be made to re-instate the complainant pending outcome 
of the case. The Mine Act provides that in cases when MSHA determines 
that the employee's complaint was not frivolously brought, the Review 
Commission can order immediate re-instatement of the miner pending 
final order on the complaint.
                          families and victims
    PAWA includes a number of sections that would expand the rights of 
workers and victims' families. OSHA has long known that workers, and 
often their families, can serve as OSHA's ``eyes and ears,'' 
identifying workplace hazards. Workers injured in workplace incidents 
and their friends and family often provide useful information to 
investigators, because employees frequently discuss work activities and 
co-workers with family members during non-work hours.
    In addition, family members and co-workers are sincerely interested 
in learning how an incident occurred, finding out if anything could 
have been done to prevent it, and knowing what steps the employers and 
employees will take in the future to ensure that someone else is not 
similarly injured or killed.
    While it is OSHA's policy to talk to families during the 
investigation process and inform them about our citation procedures and 
settlements, this policy has not always been implemented consistently 
and in a timely manner. In addition, OSHA's interactions with families 
and victims could certainly be expanded without slowing down the 
enforcement process.
    PAWA would place into law, for the first time, the right of a 
victim (injured employee or family member) to meet with OSHA regarding 
the investigation and to receive copies of the citation or resulting 
report at the same time as the employer at no cost. PAWA would also 
enable victims to be informed of any notice of contest and to make a 
statement before an agreement is made to withdraw or modify a citation.
    No one is affected more by a workplace tragedy than workers and 
their families, so we fully recognize and appreciate their desire to be 
more involved in the remedial process. However, we do believe that 
clarification is needed of the provisions allowing victims or their 
representatives to meet in person with OSHA before the agency decides 
whether to issue a citation, or to appear before parties conducting 
settlement negotiations. Our fear is that this process could result in 
significant delays in our enforcement process, which neither OSHA nor 
the families would want.
                     preventing frivolous contests
    Some have argued that if OSHA's monetary penalties are increased, 
employers would be more likely to contest enforcement actions and clog 
the system with litigation. We have certainly seen that phenomenon in 
mine enforcement. The Labor Department's Report to the President on the 
Upper Big Branch Mine disaster suggested one method of addressing this 
problem: requiring mine operators to put significant penalty amounts 
into escrow. The committee should look into this option for OSHA as 
well.
                          presumptive willfuls
    Not a week goes by that I don't read about a worker killed or 
seriously injured from a 10- or 15-foot deep trench collapsing on top 
of them. The law says that trenches more than 5 feet deep must be 
protected by a trench box or equivalent protection. These protections 
are well known and these deaths are completely, easily and cheaply 
preventable. I would attest--and I don't think there is a single 
construction safety expert in this country who would contradict me--
there is no construction company owner in this country who does not 
understand the hazards inherent in deep trenches or how to prevent 
collapses. In fact, sometime in the 5th century BC, the historian 
Herodotus, observing the Phoenician army digging trenches wrote of the 
hazards of trench collapses and how to avoid them. Yet, 2,500 years 
later, workers continue to die in trenches.
    There is no reason why such a well-recognized and easily 
preventable violation that leads to the death or serious injury of a 
worker should not be a presumptive willful citation. There are other 
violations that would fall into the same category; workers working at 
great heights without fall protection, for example.
                            imminent danger
    Currently, when OSHA identifies an imminent danger, such as a 
worker in a deep trench or at a high elevation without fall protection, 
the Agency cannot take immediate action to shut down the process or 
remove employees from harm until the hazard is corrected. OSHA must 
seek an injunction in Federal District Court if the employer refuses to 
voluntarily correct an imminent danger. While this process can work 
smoothly and rapidly in many situations where relatively quick court 
action can be obtained, some hazards can result in death in minutes. In 
addition, inspectors often work far from the courthouse when worker 
safety demands quick action.
    In contrast, the Mine Act treats imminent danger orders as 
essentially self-enforcing, requiring mine operators to evacuate miners 
in the affected area immediately, until the hazard is corrected, and 
then seek review in the Commission. Unfortunately, OSHA does not have 
the same authority as MSHA, which can order the withdrawal of miners or 
equipment if certain hazards are not abated.
    The committee might consider providing OSHA the authority, similar 
to the authority MSHA has, to ``tag'' a hazard or workplace condition 
that poses an imminent danger of death or serious injury. The employer 
would then be required to take immediate corrective action or have the 
workplace shut down. Internal procedures could be developed to ensure 
that compliance officers do not take unjustified actions.
            contract employees and multi-employer worksites
    Another obstacle to effective OSHA enforcement is the growing use 
of contract employees and OSHA's inability in certain circumstances to 
determine the hazards these employees face and to force the responsible 
party to control those hazards.
    For example, the General Duty Clause of the OSH Act addresses an 
employer's responsibility to protect its own employees from recognized 
hazards, even where no standard exists. The employer is not responsible 
under the General Duty Clause for a hazard encountered by contract 
workers, even if the employer creates or controls the hazard. Contract 
employees receive less training than direct-hire employees so they may 
need added protection.
    In modern, multi-employer work settings, employers are often 
responsible for the working conditions of many workers who technically 
may be employed by others. Employers with control of complex, multi-
employer workplaces should bear responsibility for making the workplace 
safe and healthful not only for workers on their own payroll, but for 
all affected workers. The wording of the present 5(a)(1) of the OSH Act 
only requires an employer to provide safe working conditions for ``his 
employees.'' Extending an employer's general duty beyond its own 
employees to also protect contract employees from recognized hazards 
that the employer creates or controls would enhance the utility of the 
general duty clause.
    The goal of this hearing is to identify barriers to enforcement and 
ways to encourage employer compliance with the law. To that end, I 
would be remiss if I failed to mention one additional barrier to 
protection for almost 9 million workers in this country who provide 
this Nation's most vital services: public employees.
    It is a fact, little known among the American public, that public 
employees in the United States--who respond in our emergencies, repair 
our highways, clean and treat our drinking and waste water, pick up our 
garbage, take care of our mentally ill, provide social services and 
staff our prisons--are not covered by OSHA unless the State in which 
they work chooses to do so. Today, almost 40 years after passage of the 
Occupational Safety and Health Act, half of the States still do not 
provide federally approved coverage for public employees.
    According to the Bureau of Labor Statistics, the total recordable 
case injury and illness incidence rate in 2008 for State government 
employees was 21 percent higher than the private sector rate. The rate 
for local government employees was 79 percent higher. Clearly, some 
public sector jobs are extremely dangerous. Public employees deserve to 
be safe on the job, just as private-sector employees do.
    In testimony before this subcommittee in May 2007, Jon Turnipseed, 
Safety Supervisor for the City of San Bernardino Municipal Water 
Department in California, said it most succinctly:

          From my own view as a public sector employee, the simplest 
        but most compelling reason is that saving lives and preventing 
        injuries always tops the list of values that our government 
        holds dear in every other responsibility it undertakes. State 
        and local government workers are, in many instances, the 
        ``first responders'' upon whom we all depend. Whether a 
        terrorist attack or a natural disaster, these first responders 
        are the first people who rush in to help save lives. We put a 
        premium on that capability in our society. These same people 
        who protect the public from hazards deserve no less of a 
        commitment to occupational safety and health protections from 
        their employers, the public, and all of us here today.

    Twenty-six States and one territory now provide federally approved 
OSHA coverage to their public employees and you will find that they 
consider it not a hardship, but a necessary provision for the safety of 
their employees and the provision of good government. Nonetheless, in 
2008 there were more than 277,000 injuries and illnesses with days away 
from work among State and local governmental employees. In a State that 
has public employee coverage, a public employer can be held responsible 
for safety violations. A crane operator in New Jersey died from 
injuries after his head was crushed by a cargo spreader in 2008. New 
Jersey, which has an OSHA program for public employees, issued a 
citation for willful OSHA violations. However, if this tragedy had 
occurred in Pennsylvania or Delaware, which have no public employee 
safety and health programs, the employer could not have been held 
accountable.
    Again, we support the Protecting America's Workers Act, which 
extends OSHA coverage to public-sector employees. Because the extension 
of such coverage will have costs, it should occur over time, and we 
welcome further discussion of implementation issues. There is simply no 
good argument in the 21st century for allowing public employees to be 
injured or killed under conditions that would be illegal and strictly 
punished if they were private sector employees. The days of treating 
public employees as second class citizens must come to an end.
                                 ______
                                 
    Mr. Chairman, as we prepare to observe Workers Memorial Day 
tomorrow we realize that our work is far from done. Whether it be the 
death of 29 workers in a coal mine in West Virginia, the loss of six 
employees in an explosion at an oil refinery in Washington State, or 
the single deaths that occur in workplaces each day in America, this 
carnage amounts to an unacceptable burden for the workers of America to 
bear in producing the goods and services that fuel not only our 
economy, but also our country. To take from President Obama's statement 
last week in the wake of the Upper Big Branch mine disaster, we owe all 
workers action. We owe them accountability. We owe them assurance that 
when they go to work every day they are not alone. They ought to know 
that behind them is a government that is looking out for their safety.
    I join with you, Mr. Chairman, in dedicating ourselves to bringing 
about the day when there will be no more workers memorialized for dying 
on the job. Thank you again for the opportunity to testify today. I am 
happy to answer your questions.

    The Chairman. Mr. Michaels, thank you very much for your 
testimony.
    I read your written testimony last night; I thought maybe 
you were going to talk about some of these examples here. I 
mentioned in my open statement, how the fines and penalties, of 
both civil and criminal, are tougher on environmental laws than 
they are on worker safety.
    You put, in your testimony, about the 2001 tank full of 
sulfuric acid that exploded at a refinery in Delaware, killed 
Jeff Davis, a worker. His body was literally dissolved in the 
acid. The OSHA penalty was $175,000. Yet, in the same incident, 
thousands of dead fish and crabs were discovered, allowing an 
EPA Clean Water Act violation amounting to $10 million. How can 
we tell Jeff Davis's wife, Mary, and their five children that 
the penalty for killing fish and crabs is many times higher 
than the penalty for killing their husband and father?
    Now, again, these things just cry out for us to do 
something. We've got to make the necessary changes. And that's 
what we look to you for, is your suggestions and your advice on 
how we change these.
    Right now--and we just heard from MSHA; I think you were 
here during all that--they have the authority to order the 
withdrawal of miners from an area, until they have abatement. 
They can shut down a mine. We know that that doesn't happen 
that often. Yet, OSHA cannot immediately shut down the process 
or remove workers from harm until the hazard is corrected. Is 
that correct?
    Mr. Michaels. Yes, sir. If an OSHA inspector is in a 
facility and sees a hazard that we believe is imminent--is 
dangerous to workers--we can certainly ask the employer to shut 
it down, but we can't require it. We have to go to court to do 
that.
    The Chairman. Even though there may be imminent danger.
    Mr. Michaels. Yes, sir.
    The Chairman. Do you have any advice or any suggestions for 
legislative changes?
    Mr. Michaels. I certainly would like to see that changed. I 
think that's an extremely important change. MSHA has the 
ability to be given a report, not even be onsite, but to make a 
phone call and say, ``Shut that down until we arrive.'' And we 
certainly can't do that. The OSHA law is very weak, and hasn't 
been amended, in any substantive way, since 1970.
    The Chairman. Yes. Let me tell you, as a former member of 
the House representing a very rural district in Iowa, and as a 
Senator representing a lot of small towns and communities, over 
the years I've heard story after story of OSHA inspectors 
coming out and nitpicking on something. They find some little 
thing. You hear all these horror stories. Some of them, we've 
tried to track down. It's very hard to do. But, address 
yourself to that. I'm sure you've been around long enough----
    Mr. Michaels. Yes.
    The Chairman [continuing]. You've heard all this, right? 
They just pick on these little----
    Mr. Michaels. Yes.
    The Chairman [continuing]. Things, and just create 
nonsensical kinds of things that they've got to fix up.
    Mr. Michaels. Yes, I believe that was the case in the early 
1970s. When OSHA first began, they took all the standards, from 
many different consensus organizations, and I'm told that they 
just applied them all equally. Any violation they found, they 
issued a citation. Obviously, that was a severe mistake. OSHA 
took a real beating. I think they learned. This was, actually, 
under Presidents Nixon and Ford. I think it got straightened 
out, really, by the Ford administration. And OSHA hasn't been 
that way since.
    OSHA takes its job very seriously. We have relatively few 
inspectors. We and our State partners have only about 2,000 
inspectors to cover 8 million workplaces and 130-plus million 
workers across the country. We only look at serious problems. 
Eighty-three percent of our violations are serious violations, 
which means they could threaten death or impose serious 
physical harm on the worker involved. We don't have time to 
nitpick.
    The Chairman. Tell me about--quickly, my time's running 
out--the SVE Program, this Severe Violators Enforcement 
Program. How does that differ from your Enhanced Enforcement 
Program?
    Mr. Michaels. Well, it's reshaped. We could certainly get 
you more information on this. It really makes us focus on those 
employers, where we found serious problems, that we think are 
quite recalcitrant, and it makes us go back in there on a 
regular basis and see what's going on there. We think it's a 
big advance. We're just putting it into effect now. I wasn't 
here for the previous program, but I'm confident this program 
is really going to do a good job.
    The Chairman. Thank you, Mr. Michaels.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    I helped to get the Post Office under OSHA when I first got 
here and called for inspections in my office on a regular 
basis. I know the number of inspectors indicates that a 
business is only going to be inspected once every 100 years. I 
suspect that the thousands of people that we'd have to hire in 
order to have a shorter period of time than that would create 
quite an economic burden in this country.
    There is a program that's working very well, and that's the 
VPP program, the Voluntary Participation Program----
    Mr. Michaels. Right.
    Senator Enzi [continuing]. Where they volunteer safety 
experts to work as special government employees, and have some 
pretty extensive criteria for them to ever be recognized that 
way. VPP leverages 35 FTEs to get the help of 2,400 special 
government employees to conduct inspections and audits. I'm 
pretty impressed with that. I'm even more impressed with some 
of the independent evaluations that have been done, because it 
shows that it saves taxpayers millions of dollars every year, 
just in personnel. It also avoided serious injuries, probably 
$59 million worth, in 2007, not to mention the pain and agony 
that goes with that.
    VPP has shown very strong growth. I've wanted to get it 
down into even medium-sized businesses, not just the big 
businesses, and that had been happening more in recent years. 
VPP gives recognition to exemplary workplace safety and public-
relations value that's intangible with regard to spreading 
OSHA's core mission, and making sure that people go home safe. 
Given those factors, do you believe that the VPP is worth 
preserving?
    Mr. Michaels. Yes, I do. I'm a great believer in the VP 
Program. When I was at the Department of Energy, I ran the VPP 
program. I think the concern that I've heard, from your office 
and from others, is our shifting of resources around that. And 
I want to discuss that.
    We think it's a very worthwhile program. We are very much 
focused, though, on those employers who are not the good 
participants, the ones that really want to make a difference. 
The VPP program are employers who get it. There are 14 workers 
who die every day on the job, and there are lots of employers 
who are just irresponsible and don't care. We're forced with 
choosing between, Do we put our resources into those employers 
who want to do the right thing and those employers who don't? 
So, what we've done is, we've just said we have to really focus 
on those--increase enforcement on employers who don't really 
understand this.
    We want to see the VPP program continue. We'd like to work 
very closely with your committee and with the association of 
VPP companies, the VPPPA, in finding alternative means of 
funding for this program, because we think it's a good program, 
and we want it to continue.
    Senator Enzi. Looking at the budget, we're talking about 
$3.5 million of changing resources?
    Mr. Michaels. Somewhere in that ballpark.
    Senator Enzi. Yes. So, 3.5 million; and just in the Federal 
savings, there's $59 million in savings. If you look at the 
injuries out in the private sector, there's about $300 million 
in savings. Doesn't it seem like we really ought to extend that 
program and get more of the people that are good participants 
into that program so that they're doing extensive inspections 
and cutting down accidents, and then we can shift more of the 
resources of the inspection over to the bad actors.
    Mr. Michaels. I'm not sure where the $59-million figure 
comes from. I'd love to see that.
    I believe it's a useful program, and I believe the 
companies involved want to do the right thing, and we should 
encourage them, and we should find a way to do that. We really 
do have to focus on the small companies, the high-hazard 
companies. VPP is primarily large companies. Only 6 percent of 
the employees covered in the VPP program work at employers of 
less than 250 people. It's big employers who can afford, 
essentially, to help us find some way to fund this program.
    Senator Enzi. If we drop that, how much of the extra 
resources are we going to need just to take care of the ones 
that we're going to be neglecting, who does do a good job. I'll 
be interested to know who's developing this new proposal, and 
who's been briefed on it, and whether it'll require new 
legislative authority, and how long it'll take to put the 
system in place, and how we can work more with more of the good 
people so that you can really concentrate on the bad people.
    I have a bunch of additional questions, but I'll provide 
those in writing, especially since the vote's already started.
    The Chairman. I'd note the vote started at 4:30, but I know 
Senator Murray has another meeting she has to attend to, and 
I'm going to recognize Senator Murray before we go on.
    Senator Murray. I really appreciate that, Mr. Chairman, 
because I do want to talk to you about the terrible tragedy in 
my home State, at the Tesoro Refinery. We lost seven workers, 
and it's just had a huge impact.
    I'm trying to understand how OSHA's inspection protocols 
work in States like my State and 26 other States that operate a 
DOL-approved State Occupational Safety and Health Program. Can 
you tell me how the Federal OSHA programs, like the Petroleum 
Refinery National Emphasis Program, are conducted in States 
like mine?
    Mr. Michaels. Well, I can tell you, yes. We have a National 
Emphasis Program that focuses specifically on oil refineries, 
because we believe refineries are particularly dangerous 
facilities. We've had a number of terrible events. BP Texas 
City being one example, but certainly the Tesoro Refinery was 
another.
    In Federal States we take our experts in process safety 
management--it's a relatively small number, people who 
understand refining and things like that--and we put them in to 
do inspections. We're trying to cover every refinery in the 
States that are Federal States. We've asked States, who operate 
their own State programs, to do the same thing, because under 
the OSHA law, States must be at least as effective as the 
Federal OSHA.
    Now, fortunately, Washington State has a good OSHA system, 
and has decided to replicate what we do. They have adopted----
    Senator Murray. There isn't any requirement for----
    Mr. Michaels. In this case, there is no requirement. When 
this NEP, the National Emphasis Program, was put into effect, 
it was allowed to be voluntary on the parts of States. Certain 
States, a small number, have decided not to do that. We are 
quite concerned about that.
    Senator Murray. Yes.
    Mr. Michaels. We are now re-evaluating whether--when we 
have a national program--we should allow States to opt out of 
it, because it would no longer be a national program.
    Senator Murray. But, does OSHA do followup inspections to 
sites that have been inspected as part of that national----
    Mr. Michaels. Yes. In fact, we recently had a followup 
inspection at the BP-Husky facility in Ohio. I'm sorry, Senator 
Brown isn't here. We went into that facility, we found a number 
of violations. We asked BP-Husky to abate those. When we went 
into the followup, we found--we had abated those, but went to 
the other part of the facility, because these are very large 
refineries--they hadn't made changes. The same changes that we 
required in one part, they hadn't made them in the other part. 
They just ignored that. We just issued a more-than-$2-million 
fine against BP-Husky for exactly that problem.
    We are extremely concerned about oil refineries and the 
possible catastrophic events associated with them. So, we're 
going back into them and seeing what we can do.
    Senator Murray. Well, as you know, the Tesoro's Refinery 
was cited for 17 serious safety violations in April 2009, so 
this is a big concern. And I want to followup with several 
other questions, but I wanted to ask you, before my time's up. 
In your written testimony, you explained that, under current 
law, OSHA cannot develop a Pattern of Violations, or cite an 
employer of repeat violations, if that employer has employees 
in multiple States. Right?
    Mr. Michaels. Right.
    Senator Murray. If the original violation occurs in one of 
these 21 State-Plan States that administer their own OSHA 
programs, do you necessarily know that other States have 
violations, as well?
    Mr. Michaels. That's correct, we don't know, and we can't 
use that information. It's one of the many weaknesses of the 
law that we hope might be addressed.
    Senator Murray. Well, what is the logic behind that?
    Mr. Michaels. That's the way the law was written. The State 
plans are quite independent.
    Senator Murray. Well, Mr. Chairman, this is a serious 
problem.
    Mr. Michaels. Yes.
    Senator Murray. Because if a refinery--and many of them do 
have operations in many States, and they're under State-run 
OSHA plans, then those violations don't add up in totality, and 
people don't know about it.
    Mr. Michaels. Correct.
    Senator Murray. I mean, it seems we have to fix that.
    Mr. Chairman, I know we have a vote. I have a number of 
questions I'd like to submit for the record. I want you to know 
this is something I intend to pursue.
    [The information referred to may be found in Additional 
Material.]
    The Chairman. Thank you very much, Senator.
    Voice. Inaudible.
    The Chairman. Yes, sir.
    Voice. Inaudible.
    Senator Enzi. Mr. Chairman, I just wanted to mention that 
that $59-million figure comes from an OSHA press release.
    Mr. Michaels. Great. I'd like to see it, thank you.
    [Laughter.]
    The Chairman. All right.
    Well, Senator Rockefeller, if you don't have any----
    Senator Rockefeller. No. I just want to yield to Senator 
Murray.
    The Chairman. Oh. She has----
    Senator Murray.
    Well, Mr. Michaels, thank you very much.
    There's a vote on, right now. We'll recess, here, for about 
10 minutes. We'll go over and vote. We'll be back, and we'll 
take the next panel.
    I would invite panel four to go ahead and take the table: 
Margaret Seminario, Holly Shaw, Michael Brandt, and Kelli 
Heflin.
    We'll be right back.
    [Recess.]
    The Chairman [resuming the chair]. The Health, Education, 
Labor, and Pensions Committee will resume its sitting.
    Again, I want to thank all of you for your patience and for 
your willingness to be here.
    Our fourth panel, Margaret Seminario, director of 
Occupational Safety and Health for the AFL-CIO, has worked 
extensively on a wide range of regulatory and legislative 
initiatives at the Federal and State level, serves on numerous 
Federal agency and scientific advisory committees, participated 
in international safety and health work through the ILO, the 
OECD, and international trade union organizations.
    Holly Shaw is an instructional technology teacher at E.M. 
Stanton School, in Philadelphia, where she has taught for 20 
years. In September 2002, Holly's husband, Scott Shaw, lost his 
life while working for Armco Construction on a dredging project 
in the Schuylkill River, in Philadelphia. Since the incident, 
Holly has been active helping others who have been affected by 
a workplace fatality. She is the founder and chairperson of the 
Tristate--Family Support Group, which provides support to 
families suffering from the loss of a family member to a work-
related injury. She's also active with United Support and 
Memorial for Workplace Fatalities, where she travels and 
advocates on behalf of families who have lost their loved one 
to a workplace fatality.
    Michael T. Brandt--Dr. Brandt is a certified industrial 
hygienist and the president-elect of the American Industrial 
Hygiene Association, with more than 30 years of professional 
experience in risk management and business operations 
management, serving in highly technical and challenging 
leadership roles in the chemical industry, research and 
development, manufacturing in the nuclear and high-hazard 
sector. He currently serves as operations technical chief of 
staff at Los Alamos National Laboratory.
    And Ms. Kelli Heflin, regulatory safety manager at Scott's 
Liquid Gold, a VPP STAR site. Kelli is very active in Region 8, 
assisting OSHA at their information sessions and serving as an 
SGE. I'm sorry, what is an SGE?
    Ms. Heflin. SGE is a Special Government Employee. I have 
been trained, in a special class----
    The Chairman. Oh.
    Ms. Heflin [continuing]. To assist OSHA on their VPP 
audits.
    The Chairman. There you go. Thank you.
    She's also very active in the VPP Participants Association, 
serving as Region 8 chairperson, as secretary on the National 
Board of Directors. Started her safety career at Rocky Flats 
Environment Technology Site, working in a research development 
group that helped employees develop proactive decontamination 
techniques prior to entering radioactive areas--or prior to 
leaving radioactive areas. Either one, I suppose, right? Kelli 
has a master's degree in environment policy management, and a 
doctorate in safety management.
    Welcome, to all of you. As said before, your statements 
will be made a part of the record in their entirety. I would 
appreciate it if you could each sum up, in about 5 minutes. 
That would be great.
    Ms. Seminario, please proceed.

        STATEMENT OF PEG SEMINARIO, DIRECTOR OF SAFETY 
               AND HEALTH, AFL-CIO, BETHESDA, MD

    Ms. Seminario. Thank you very much, Senator Harkin. I 
appreciate the opportunity to testify today on making the 
safety and health of workers a higher priority and improving 
protections on the job.
    Tomorrow, April 28, is Workers Memorial Day, a day unions 
and others, here and around the globe, remember those who have 
been killed, injured, and diseased on the job.
    Nearly four decades after the job safety and health law was 
passed, we find that the promise of safe jobs for American 
workers is far from being fulfilled. And, without question, 
while we've made great progress, there are too many workers 
being killed, injured, and diseased on the job. We are reminded 
of the terrible toll, by the recent tragedies in West Virginia, 
the Tesoro Refinery in Washington State, and last week's 
disaster off the Louisiana coast.
    In 2008, there were 5,214 workers killed on the job. That's 
an average of 14 workers every day. The vast majority of these 
deaths could be prevented if protective safety and health 
measures were followed. The fact is that, for too many 
employers, the safety of workers is secondary, taking a 
backseat to production. For some employers, there is a total 
and blatant disregard for workers, and worker safety and other 
worker protections are totally ignored.
    My testimony today will focus on the adequacies of 
protections under the Occupational Safety and Health law. 
That's the law that governs the safety and health for the 
majority of America's workers.
    The OSH Act was enacted in 1970. It was one of the first 
safety and health laws that was enacted. It was right after the 
Coal Mine Safety law, in 1969, and part of a whole class of 
safety and environmental laws. Virtually all the other safety 
and health laws in this country--and environmental laws--have 
been updated and strengthened since. OSHA has not. Except for 
very, very small changes, the act today is exactly as it was 
enacted--signed into law in 1970. The simple fact is that it's 
out of date, and it is too weak to provide for incentives for 
compliance, to deter violations, and to protect workers from 
unnecessary injury and death.
    Unlike under the Mine Safety and Health Act, there are no 
regular inspections under the Occupational Safety and Health 
Act, in that the oversight of workplaces is exceedingly rare. 
Today, the AFL-CIO released our annual Death on the Job Report. 
It's a report that looks at the state of safety and health in 
the United States. What we find is that today there are 
approximately 2,200 Federal and State OSHA inspectors. With 
this level of resources, the Federal Government has the 
capacity to inspect workplaces under ITS jurisdiction about 
once every 137 years.
    I think one thing that's important to note is that OSHA's 
capacity is less today than it was in 1980. They had 450 more 
inspectors in 1980 than they do 20 years later, even though the 
workforce is 40 percent bigger. We aren't paying the kind of 
priority, and giving safety and health the kind of emphasis, it 
needs.
    As we heard earlier, from Dr. David Michaels, the penalties 
under the Occupational Safety and Health Act are low, 
exceedingly low, particularly for a serious violation. We find 
that not even the maximum penalties are hardly ever assessed. 
The average serious penalty for an OSHA violation last year 
under Federal OSHA was $965.
    The penalties are appallingly weak, even in cases where 
workers are killed. We did an analysis of OSHA fatality 
inspections, and we found that, last year in the United States, 
the median penalty--the typical penalty in a worker death was 
$5,000. That's it, $5,000 when a worker was killed and that 
these penalties vary widely from State to State. In Utah, it 
was only $1,250. In your State, Senator Harkin, the median 
penalty when a worker was killed was $3,000. So, these 
penalties for deaths often are in very serious situations, from 
trench cave-ins to lockout of hazardous equipment. They are 
from very serious, well-recognized hazards.
    If the civil penalties are weak, the criminal penalties are 
even weaker under the OSH Act. The maximum criminal penalty for 
worker death, for a willful violation, is 6 months in jail. 
Very few of these are prosecuted. Since OSHA was enacted, only 
79 cases have been prosecuted under the act, with defendants 
serving a total of 89 months in jail. During this time, there 
were 360,000 workplace fatalities. By comparison, under EPA and 
environmental laws, there were 387 criminal enforcement cases 
initiated, 250 defendants charged, resulting in 76 years of 
jail time in just 1 year. In just 1 year. The comparison here--
there is a total weakness in the laws that are designed to 
protect our workers.
    It is clear--40 years after the enactment of the 
Occupational Safety and Health law--that it is time to move 
forward and to strengthen the protections that we provide 
workers in this country. We must not only mourn the loss of 
those who have died, but to take action to prevent these 
tragedies from occurring.
    I would urge and advocate that the committee strengthen the 
Occupational Safety and Health Act, and start moving on this by 
taking up the Protecting America's Workers Act, legislation 
introduced by Senator Edward Kennedy before his death. This 
legislation would address many of the core deficiencies in the 
current OSHA law by extending coverage to workers who aren't 
covered, strengthening civil and criminal penalties, and 
providing workers stronger rights and antidiscrimination 
protections.
    So, I would just conclude and encourage the committee to 
look carefully at the deficiencies in this law, consider the 
testimony of those who are joining me today, and then move 
forward and strengthen the Occupational Safety and Health Act 
to give workers in this country the protection they deserve.
    Thank you.
    [The prepared statement of Ms. Seminario follows:]
                  Prepared Statement of Peg Seminario
    Senator Harkin, Ranking Member Enzi, and other members of the 
committee, my name is Peg Seminario. I am Safety and Health Director 
for the AFL-CIO. I appreciate the opportunity to testify today on 
making the safety and health of workers a higher priority and improving 
protections on the job.
    Tomorrow, April 28, is Workers Memorial Day--a day unions and 
others here and around the globe remember those who have been killed, 
injured and diseased on the job. Here in the United States, it also 
marks the 39th anniversary of when the Occupational Safety and Health 
Act went into effect.
    Nearly four decades after the job safety law was passed we find 
that the promise of safe jobs for American workers is far from being 
fulfilled. Without question, progress has been made in improving 
protections and in reducing job fatalities, injuries and illnesses. Too 
many workers remain at serious risk of injury, illness or death. In the 
past few weeks and months there have been a series of workplace 
tragedies that have saddened and outraged us all--the coal mine 
disaster at the Massey Energy Upper Big Branch mine in West Virginia 
that killed 29 miners, an explosion a few days earlier at the Tesoro 
Refinery in Washington State that killed seven workers, and the 
explosion at the Kleen Energy Plant in Connecticut in February that 
also claimed the lives of six workers. Last week there was a 
catastrophic explosion that destroyed the Transocean oil rig off the 
Louisiana coast. Seventeen workers are known to have been injured in 
the blast, and eleven workers are still missing, with little hope of 
finding them alive.
    In 2008, 5,214 workers were killed on the job--an average of 14 
workers every day--and an estimated 50,000 died from occupational 
diseases. More than 4.6 million work-related injuries were reported, 
this number understates the problem due to limitations in the data 
collection and underreporting. The true toll of job injuries is two to 
three times greater--about 9 to 14 million job injuries each year.
    The vast majority of workplace deaths and injuries could be 
prevented if protective safety and health measures were followed. The 
fact is that for too many employers, the safety of workers is 
secondary, taking a back seat to production. For some employers, there 
is a total and blatant disregard for workers. Worker safety 
requirements and other worker protections are totally ignored.
    Today's hearing is examining the safety practices and protections 
at mines and other dangerous workplaces. As you have heard from other 
witnesses, clearly there were serious problems at the Massey mine and 
in the Mine Safety and Health Administration's (MSHA) oversight and 
enforcement that need to be examined and addressed. Action should be 
taken to improve mine safety regulations, enforcement and legislation, 
just as was done in 2006 following the series of disasters at Sago and 
other mines.
    My testimony today will focus on the adequacy of protections under 
the Occupational Safety and Health Act, the law that governs safety and 
health for the majority of America's workers. This job safety and 
health law is out of date and too weak to provide incentives for 
compliance, to deter violations or to protect workers from retaliation.
    The Congress should act to strengthen the OSH Act to hold employers 
responsible for protecting workers and accountable when they fail to do 
so, to provide government the necessary authority and enforcement power 
to get hazards corrected and deter future violations, and to give 
workers and unions stronger rights and protections to have a voice in 
safety and health on the job.
     employers have a legal responsibility to protect workers--but 
   enforcement and penalties are too weak to create an incentive to 
                improve conditions and deter violations
    The Occupational Safety and Health Act places the responsibility on 
employers to protect workers from hazards and to comply with the law. 
The law relies largely on the good faith of employers to address 
hazards and improve conditions. For this system to work, it must be 
backed up with strong and meaningful enforcement. At present, the 
Occupational Safety and Health Act and the OSHA enforcement program 
provide limited deterrence to employers who put workers in danger. OSHA 
inspections and oversight of workplaces are exceedingly rare. There are 
no mandatory inspections even for the most dangerous industries or 
workplaces. In fiscal year 2009, there were approximately 2,200 Federal 
and State OSHA inspectors combined. OSHA has the capacity and resources 
to inspect workplaces on average once every 94 years--once every 137 
years in the Federal OSHA States.
    Over the years OSHA's oversight capacity was diminished, as the 
number of inspectors declined at the same time the workforce increased. 
The fiscal year 2010 appropriations provided for an increase in OSHA's 
enforcement staff and an increase in funding for OSHA State plans, and 
returned Federal enforcement staffing levels back to their fiscal year 
2001 levels. Even with this recent increase, the number of Federal OSHA 
enforcement staff today is 450 fewer than it was in fiscal year 1980, 
while the size of the workforce is 40 percent larger than it was at 
that time.
    Since there is no regular oversight, strong enforcement when 
workplaces are inspected and violations are found is even more 
important. The penalties provided in the OSH Act are weak. Serious 
violations of the law (those that pose a substantial probability of 
death or serious physical harm to workers) are subject to a maximum 
penalty of $7,000. Willful and repeated violations carry a maximum 
penalty of $70,000 and willful violations a minimum of $5,000. These 
penalties were last adjusted by the Congress in 1990 (the only time 
they have been raised). Unlike all other Federal enforcement agencies 
(except the IRS), the OSH Act is exempt from the Federal Civil 
Penalties Inflation Adjustment Act, so there have not even been 
increases in OSHA penalties for inflation, which has reduced the real 
dollar value of OSHA penalties by about 40 percent. For OSHA penalties 
to have the same value as they did in 1990, they would have to be 
increased to $11,600 for a serious violation and to $116,000 for a 
willful violation of the law.
    The maximum civil penalties provided for under the OSH Act are 
rarely assessed. Indeed, just the opposite is the case. In fiscal year 
2009, the average penalty for a serious violation of the law was $965 
for Federal OSHA and $781 for the State OSHA plans combined. Again this 
is the average penalty for violations that pose a substantial 
probability of death or serious physical harm. California had the 
highest average penalty for serious violations and South Carolina had 
the lowest. Both of these are State-Plan States. California amended its 
OSHA law in 2000 to increase penalties, with the maximum penalty for a 
serious violation in that State set at $25,000 compared to $7,000 
maximum penalty under Federal OSHA and the other State plans.
    For violations that are ``other'' than serious, which also carry a 
statutory maximum under the OSH Act of $7,000, the average Federal OSHA 
penalty was just $234. Clearly, for most employers these levels of 
penalties are not sufficient to change employer behavior, improve 
workplace conditions or deter future violations.
    OSHA penalties for violations that are willful or repeated also 
fall well below the maximum statutory penalties. For both willful and 
repeat violations, the OSH Act provides a maximum penalty of $70,000 
per violation. For violations that are willful, a $5,000 mandatory 
minimum penalty is also prescribed. In fiscal year 2009, the average 
Federal OSHA penalty for a willful violation was $34,271, and the 
average willful penalty for State plans was $20,270. For repeat 
violations, the average Federal OSHA penalty was only $3,871 and for 
State plans the average was $1,757, a fraction of the statutory maximum 
penalty for such violations.
    Even in cases of worker fatalities, OSHA enforcement is appallingly 
weak. In fiscal year 2009, the average total penalty in a fatality case 
was just $7,668 for Federal and State OSHA plans combined, according to 
OSHA inspection data. The median penalty--which reflects the mid-point 
of the penalties assessed in fatality cases--is even lower, currently 
$5,000 for both Federal OSHA and the State OSHA plans. These data, both 
averages and median penalties, include enforcement cases that still are 
under contest, and it is likely that after settlements and final 
resolution these penalty levels will be much lower.
    A state-by-state analysis of fatality investigations shows 
penalties in cases involving worker deaths vary widely from State to 
State. In fiscal year 2009, Utah had the lowest median penalty for 
fatality investigations, with a paltry $1,250 in penalties assessed, 
followed by Washington ($1,600) and Kentucky ($2,000). Minnesota had 
the highest median penalty ($26,200), followed by New Hampshire 
($17,000) and Colorado ($12,000).
    What kinds of cases are resulting in such low penalties when 
workers are killed? Many are for deaths from well-recognized hazards--
trench cave-ins, failure to lock-out dangerous equipment, and lack of 
machine guarding. They include:

     A January 2009 trench cave-in in Freyburg, OH. The victim 
Andrew Keller was 22 years old. The company, Tumbusch Construction, was 
cited for three serious violations and penalized $6,300. The penalties 
were reduced to $4,500. Six months later, in June 2009, OSHA found 
similar violations at another jobsite of Tumbusch Construction. This 
time the company was cited for both serious and willful violations with 
a total of $53,800 in penalties proposed. The company has contested the 
violations.
     A July 2009 fatality case in Batesville, TX, one worker 
was killed and two workers injured when natural gas was ignited during 
oxygen/acetylene cutting on a natural gas pipeline. The employer, L&J 
Roustabout, Inc., was cited for 3 serious violations with $3,000 in 
penalties. The case was settled for $1,500.
     A fatality in August 2009, in Lamar, SC. Andrea Taylor, 
28, an employee of Affordable Electric was killed on the job. South 
Carolina OSHA cited the company for five serious violations of 
electrical and lock-out standards with a proposed penalty of $6,600. In 
an October 2009 settlement, three of the violations were dropped and 
the penalties reduced to $1,400.

    In August 2009, at SMC, Inc. in Odessa, TX, a worker was caught in 
the shaft of milling machine and killed. The company was cited for one 
serious violation. The $2,500 proposed penalty was reduced at 
settlement to $2,000.
    What kind of message does it send to employers, workers and family 
members, that the death of a worker caused by a serious or even 
repeated violation of the law warrants only a penalty of a few thousand 
dollars? It tells them that there is little value placed on the lives 
of workers in this country and that there are no serious consequences 
for violating the law.
   the osh act and osha enforcement policies discount penalties for 
                violations even in cases of worker death
    Why are OSHA penalties for workplace fatalities and job safety 
violations so low? The problems are largely systemic and start with the 
OSH Act itself. The act sets low maximum penalty levels, particularly 
for serious violations, which carry a maximum of $7,000, clearly not a 
deterrent for many companies. For example, in 2008, a Walmart store 
employee in Valley Stream, NY was trampled to death, when the company 
failed to provide for crowd control at a post-Thanksgiving sale. The 
company was cited for one serious violation and penalized $7,000, the 
maximum amount for a serious violation.
    For a willful or repeat violation the maximum penalty is $70,000. 
In assessing penalties, under the act, employer size, good faith, 
history, and gravity of the violation are to be taken into 
consideration.
    Throughout its history, OSHA procedures for considering these four 
factors have resulted in proposed penalties that are substantially 
below the maximum penalties. The agency starts with a gravity-based 
penalty, which is then adjusted by specified percentages for each of 
the other three factors (except in certain circumstances). For high 
gravity serious violations, the current OSHA penalty policy starts with 
a base of $5,000, not $7,000 to determine the penalty. This is true 
even for fatality cases, which under OSHA policy are supposed to be 
classified as high-gravity. In fatality cases, no reductions are 
allowed for good faith, but penalty reductions are still allowed for 
employer size and history. These reductions vary by the size of 
employer, with smaller employers eligible for much larger reductions. 
In many cases there is an automatic 30 to 90 percent discount in 
penalties, regardless of the gravity of the violations that are found.
    OSHA's general policy is to group multiple instances of the same 
violation into one citation, with one penalty. For example, if five 
workers are injured due to an employer's failure to provide guarding 
for machines, the employer will only be cited once for the violation, 
even though five workers were hurt. This policy further minimizes the 
level of overall penalties in enforcement cases, including fatalities.
    The initial citations and penalties in OSHA enforcement cases, weak 
to begin with, are reduced even further in the resolution of cases. Due 
to limited staff and resources, OSHA area directors and Department of 
Labor solicitors are under tremendous pressure to settle cases and 
avoid time consuming and costly litigation. Moreover, under the OSH Act 
there is no requirement for employers to abate violations while a 
challenge to a citation or penalty is pending. Thus to secure abatement 
of the hazards, OSHA has a great incentive to settle cases. The result 
of these settlements is generally a large reduction in proposed 
penalties--often 30-50 percent.
    Last Friday OSHA announced two major enforcement initiatives: the 
Severe Violators Enforcement Program (SVEP) and a revamping of the 
formulas for assessing penalties for violations. The SVEP program calls 
for enhanced follow-up and enforcement for the most persistent and 
egregious violators who have a history of willful, repeated or failure 
to abate violations, particularly related to fatalities, major 
occupational safety and health hazards or underreporting of injuries or 
illnesses. The new penalty policy which will become effective over the 
next several months will result in an increase in the average penalty 
for serious violations from the current average of $1,000 to an average 
of $3,000 or $4,000, according to OSHA.
    These enhancements in OSHA's enforcement program are welcome. But 
they still do not change the fact that there are significant 
limitations in the OSH Act itself--including a maximum penalty of 
$7,000 for a serious violation and no authority to require abatement of 
serious hazards while a contest of a citation is pending--that can only 
be addressed by changes in the law.
 osha criminal penalties are weak and do not hold employers accountable
    If the civil penalties under the Occupational Safety and Health Act 
provide little deterrence or incentive for employers, the criminal 
penalties are even weaker. Under the Occupational Safety and Health 
Act, criminal penalties are limited to those cases where a willful 
violation of an OSHA standard results in the death of a worker, and to 
cases of false statements or misrepresentations. The maximum period of 
incarceration upon conviction is 6 months in jail, making these crimes 
a misdemeanor.
    The criminal penalty provisions of the OSH Act have never been 
updated since the law was enacted in 1970 and are weaker than virtually 
all the other Federal safety and environmental laws, which have been 
strengthened over the years to provide for much tougher criminal 
penalties. The Clean Air Act, the Clean Water Act, and the Resource 
Conservation and Recovery Act all provide for criminal prosecution for 
knowing violations of the law, and for knowing endangerment that places 
a person in imminent danger of death or serious bodily harm, with 
penalties of up to 15 years in jail. Again, there is no prerequisite 
for a death or serious injury to occur.
    Since 1977 the Mine Safety and Health Act has provided for criminal 
penalties for willful violations of safety and health standards and 
knowing violations for failure to comply with orders or final decisions 
issued under the law. Unlike the OSH Act, these criminal penalties are 
not limited to cases involving a worker's death. But like the OSH Act 
for the first offense, the penalty is only a misdemeanor with up to 1 
year in jail.
    The weak criminal penalties under the OSH Act result in relatively 
few prosecutions. With limited resources, Federal prosecutors are not 
willing or able to devote significant time or energy to these cases. 
According to information provided by the Department of Labor, since the 
passage of the act in 1970, only 79 cases have been prosecuted under 
the act, with defendants serving a total of 89 months in jail. During 
this time, there were more than 360,000 workplace fatalities according 
to National Safety Council and BLS data, about 20 percent of which were 
investigated by Federal OSHA. In fiscal year 2009, according to 
information provided by OSHA, there were 11 cases referred by DOL for 
possible criminal prosecution. The Department of Justice (DOJ) has 
declined to prosecute 2 of these cases; the other 9 are still under 
review by DOJ.
    The bottom line is that there is no real accountability for 
employers or corporate officials who knowingly violate the law and put 
workers in danger
    By comparison, according to EPA in fiscal year 2009 there were 387 
criminal enforcement cases initiated under Federal environmental laws 
and 200 defendants charged resulting in 76 years of jail time and $96 
million in penalties--more cases, fines and jail time in 1 year than 
during OSHA's entire history. The aggressive use of criminal penalties 
for enforcement of environmental laws and the real potential for jail 
time for corporate officials, serve as a powerful deterrent to 
environmental violators.
    In recent years the Justice Department launched a new Worker 
Endangerment Initiative that focuses on companies that put workers in 
danger while violating environmental laws. The Justice Department 
prosecutes these employers using the much tougher criminal provisions 
of environmental statutes. Under the initiative, the Justice Department 
has prosecuted employers such as McWane, Inc. a major manufacturer of 
cast iron pipe, responsible for the deaths of several workers; Motiva 
Enterprises, which negligently endangered workers in an explosion that 
killed one worker, injured eight others and caused major environmental 
releases of sulfuric acid; and British Petroleum for a 2005 explosion 
at a Texas refinery that killed 15 workers.
    These prosecutions have led to major criminal penalties for 
violations of environmental laws, but at the same time underscore the 
weaknesses in the enforcement provisions of the Occupational Safety and 
Health Act.
    In the Motiva case, the company pleaded guilty to endangering its 
workers under the Clean Water Act and was ordered to pay a $10 million 
fine. The company also paid more than $12 million in civil penalties 
for environmental violations. In contrast, in 2002 following the 
explosion, OSHA initially cited the company for three serious and two 
willful violations with proposed penalties of $161,000. As a result of 
a formal settlement, the original serious and willful citations were 
dropped and replaced with ``unclassified'' citations carrying $175,000 
in penalties, greatly undermining any possibility of criminal 
enforcement under the OSH Act.
    In the BP Texas City refinery disaster, where 15 workers were 
killed and another 170 injured in 2005, under a plea agreement, the 
company pleaded guilty to a felony violation of the Clean Air Act and 
agreed to pay $50 million in penalties and serve a 3-year probation. BP 
also agreed to pay $100 million in criminal penalties for manipulating 
the propane market. BP paid no criminal penalties under the OSH Act, 
even though 15 workers died and OSHA issued hundreds of civil citations 
for willful, egregious violations of the law. Under the OSH Act, even 
if BP had paid criminal penalties, it would have been a misdemeanor, 
not a felony. Instead, BP paid $21 million in civil penalties in a 
settlement reached with OSHA. These civil penalties issued by OSHA were 
not sufficient to change BP's practices. In October 2009, OSHA found 
that BP had failed to abate the hazardous conditions that caused the 
2005 explosion. OSHA issued 270 notices of failure to abate previous 
hazards, cited the company for 439 new willful violations and proposed 
$87.4 million in fines--the largest in OSHA's history. Under the OSH 
Act, OSHA has no authority to take criminal action against BP for these 
latest violations.
 worker and union rights under the osh act are limited and protections 
                 against employer retaliation are weak
    Workers and unions play an important role in improving conditions 
in the Nation's workplaces. Workers have first-hand knowledge of 
conditions that create hazards and the changes that are needed to 
address them. The importance of worker and union participation in 
worksite safety and health programs and activities is widely recognized 
and recommended. The rights workers have under the OSH Act to be 
involved are very limited. At present there is no Federal OSHA 
mandatory safety and health program standard that requires that workers 
and their representatives be involved in efforts to identify and 
correct workplace hazards, although a number of State OSHA plans have 
standards that provide for worker and union participation. Many unions 
have secured these rights through their collective bargaining 
agreements.
    In the OSHA enforcement process, workers and unions have the right 
to file a complaint, receive an inspection, and to participate in the 
OSHA inspection by exercising the right to walk around or talk 
privately to inspectors. Once the inspection is completed, workers' and 
unions' rights are quite limited. They can contest the abatement date, 
but not the proposed penalties or classification of violations, and 
only have very limited rights to object to settlements that are reached 
between OSHA and employers. The result often is weak enforcement 
actions and settlements by OSHA.
    Many workers simply are in no position to exercise any safety and 
health rights, fearing employer retaliation if they raise safety and 
health concerns or even report injuries. While the OSH Act includes 
provisions under section 11(c) that prohibit employers from 
discriminating against workers for exercising their rights, the 
measures are so weak that in practice they provide little protection.
    Section 11(c) requires that all discrimination complaints be filed 
within 30 days which gives little time for action. Cases can only be 
prosecuted by the Secretary of Labor, and must be brought in Federal 
court. There are no provisions for preliminary reinstatement while 
employer challenges are pending.
    The anti-discrimination provisions of the OSH Act were adopted in 
1970. Since that time more than two dozen other laws that provide anti-
discrimination or whistleblower protections have been enacted, all of 
which provide stronger protections and more effective enforcement 
mechanisms. Many of these (16 laws) are enforced by OSHA under 
agreements with other agencies.
    These include the Surface Transportation Assistance Act, the 
Federal Railroad Safety Act, the Toxic Substances Control Act and the 
Sarbannes-Oxley Act all of which provide for administrative process for 
an individual to seek review of the Secretary's decision, including the 
right of a complainant to seek review in the case where the Secretary 
finds no violation. A number of these statutes provide individuals the 
right to pursue the case on their own if the Secretary fails to act. 
Some of these statutes provide for preliminary re-instatement of the 
individual based on the initial investigation, so a worker is not 
adversely affected while the case and possible employer challenges are 
being resolved.
    The OSHA whistleblower program is a small program with a small 
staff. In fiscal year 2009, the program had 73 staff members 
responsible for investigating complaints in the field. (For fiscal year 
2011, the President's Budget requests an additional 25 investigators). 
As noted above, in addition to administering section 11(c) of OSH Act, 
the office investigates discrimination complaints under 16 other 
statutes, under agreements with other agencies. As the GAO noted in a 
2009 report on the whistleblower program, even though the number of 
statutes the office is responsible for enforcing has grown, the number 
of staff has remained the same, making it more difficult for the office 
to meet its responsibilities.
    According to data provided by OSHA, in fiscal year 2009, Federal 
OSHA received 1,280 section 11(c) discrimination complaints, and 
completed action on 1,173 cases. Only 15 of these cases were 
recommended for litigation and another 246 settled. Of these cases, 834 
were dismissed by the agency, of which 104 were appealed by 
complainants to the OSHA National Office. Of these 10 were remanded 
back to the regions for re-hearing.
    Of the cases that are found meritorious by investigators, few are 
actually litigated by the Solicitor of Labor (SOL). In fiscal year 
2009, four of the cases recommended went to court. Since fiscal year 
1996, out of the 467 cases referred by OSHA to SOL, only 32 lawsuits in 
11(c) cases were filed.
    The outcomes of the cases brought under the other statutes, (901 
cases in fiscal year 2009), is similar. However, under most of these 
other statutes, unlike under section 11(c), the individual has the 
right to pursue the case on their own or to seek independent review of 
the Secretary's decision in an administrative process or in court. 
Under the current provisions of the OSH Act, an individual complainant 
has no rights independent of the Secretary, and cannot pursue the case 
independently or seek review outside the agency.
    Workers who raise safety and health concerns or report injuries 
should be protected against employer retaliation. The best protection 
comes by having a collective bargaining agreement and union 
representation. For those who are not represented, protection under the 
Occupational Safety and Health Act is critical. The Congress should 
strengthen the OSH Act to provide workers the same kind of rights and 
protection against discrimination that have been provided under the 
Surface Transportation Assistance Act, the Mine Safety and Health Act 
and other laws.
         congress should act to strengthen the job safety laws
    The recent disasters at the Massey Upper Big Branch coal mine, 
Tesoro refinery, Kleen Energy plant and Transocean oil rig have 
highlighted the serious dangers too many workers face on the job and 
the importance of strong safety and health protections. While each of 
these tragedies is still under investigation, we know that in these 
four cases there were catastrophic failures and as a result 42 men and 
women are dead, and another 11 men have likely perished. We also know 
that these kinds of tragedies are not isolated or new, as evidenced by 
the Imperial Sugar Refinery fire in 2008 that killed 14 workers, the 
2005 BP Texas City Refinery blast that killed 15, the dozens of miners 
killed in 2006 and 2007 at the Sago mine, the Crandall Canyon mine and 
other mines, and the daily toll of 14 workers who lose their lives on 
the job each day.
    As a nation we must not only mourn their loss, but take action to 
prevent these tragedies from continuing to occur.
    This Occupational Safety and Health Act is out of date and too weak 
to provide meaningful incentives for employers to address job hazards 
or to deter violations. The levels of penalties for serious violations, 
even in cases of worker deaths are little more than a slap on the 
wrist, and there is no accountability for employers who put workers in 
grave danger.
    The Congress must act.
    This committee should start by taking up the Protecting America's 
Workers Act (PAWA--S. 1580) legislation to strengthen the Occupational 
Safety and Health Act. The bill was introduced by Senator Harry Reid on 
behalf of the late Senator Edward Kennedy last August with the co-
sponsorship of many on this committee.
    PAWA would address many of the core deficiencies in the current OSH 
Act. It would extend coverage to public sector and other workers who 
lack protection. It would increase civil and criminal penalties to 
provide more meaningful penalties for those who violate the law and 
provide a greater deterrent to prevent future violations that put 
workers in danger. It would strengthen 11(c) anti-retaliation 
protections and expand workers', unions' and victims' rights in the 
enforcement process.
    Specifically, on enforcement, the bill changes the law to require 
that employers abate serious hazards even if they contest citations, 
similar to the requirement in the Mine Safety and Health Act. Currently 
under the OSH Act, there is no requirement to correct violations until 
a contest is resolved, which can sometimes take years. The legislation 
would update the base penalties amounts in the OSH Act to adjust for 
inflationary increases since 1990 when the penalties were last raised. 
The bill would increase the penalties for serious violations to $12,000 
from $7,000 and those for repeat and willful violations to $120,000 
from $70,000, and provide for inflationary adjustments in the future.
    To ensure that penalties for violations that result in worker 
deaths are more than a slap on the wrist, the bill sets higher 
penalties for such violations. For serious violations that result in a 
worker death a maximum penalty of $50,000 and a minimum penalty of 
$20,000 is provided, with a minimum of $10,000 for smaller employers. 
For willful and repeat violations related to worker deaths, a maximum 
penalty of $250,000 and minimum of $50,000 is provided, with a minimum 
of $25,000 for small employers.
    PAWA also properly strengthens the criminal provisions of the 
Occupational Safety and Health Act, which have not been modified since 
the act's passage in 1970. The bill would make criminal violations a 
felony, instead of a misdemeanor as is now the case, making it more 
worthwhile for prosecutors to pursue these violations. PAWA also 
expands the criminal provisions to cases where violations cause serious 
injury to workers. It expands the criminal provisions to apply to all 
responsible corporate officers, not just the top officer or corporation 
itself. These enhanced criminal provisions will provide a greater 
incentive for management officials to exercise management 
responsibility over job safety and health, and give OSHA and the 
Department of Justice the tools needed to prosecute corporations and 
officials who cause the injury or death of workers.
    The legislation would strengthen the OSH Act's whistleblower 
provisions to protect workers from retaliation for raising job safety 
and health concerns, exercising their rights or reporting injuries, by 
bringing the law into conformity with other whistleblower laws. It 
extends the time period for filing complaints, provides an 
administrative process for review, and gives the complainant the right 
to proceed with a case if the Secretary fails to act and to seek an 
administrative review of the Secretary's decision. The legislation also 
codifies the right of a worker to refuse to perform work that poses a 
serious danger and provides for reinstatement of a worker who has been 
terminated, while legal challenges are pending.
    The legislation also expands the rights of workers, unions and 
victims to be involved in the enforcement process. It gives workers and 
unions the right to contest proposed penalties and the characterization 
of violations, not just the period for abatement, and the right to seek 
review of settlements reached by employers and the government. Victims 
of workplace injuries and the family members and representatives of 
workers killed or incapacitated are given the right to receive copies 
of citations and documents, to meet with the Secretary or 
representative of the Secretary, to be informed of contests and 
settlements and to have the opportunity to make a statement before the 
parties before any settlement is finalized.
    This committee and the Congress cannot bring back the 29 miners who 
died in West Virginia, the seven workers who died in the Tesoro 
Refinery explosion in Washington, the six workers killed at the Kleen 
Energy plant in Connecticut, and the thousands of others who lost their 
lives on the job in just the last year. The committee and the Congress 
have the responsibility and the duty to do everything in their power to 
prevent similar tragedies and unnecessary deaths from occurring in the 
future.
    It has been four decades since the Congress enacted the 
Occupational Safety and Health Act. It's time for the Congress and the 
Nation to make the protection of America's workers a high priority. 
It's time for the Congress to renew the commitment to safe jobs for 
American workers and to strengthen the job safety and health law by 
passing the Protecting America's Workers Act.

Federal OSHA and State OSHA Plan Inspection/Enforcement Activity, Fiscal
                                Year 2009
------------------------------------------------------------------------
                                                  Federal     State Plan
                  Inspections                       OSHA         OSHA
------------------------------------------------------------------------
Inspections...................................       39,057       61,310
  Safety......................................       33,256       48,221
  Health......................................        5,801       13,089
  Complaints..................................        6,675        8,612
  Programmed..................................       24,336       39,676
  Construction................................       23,952       26,245
  Maritime....................................          338           47
  Manufacturing...............................        7,312        9,998
  Other.......................................        7,455       25,020
Employees Covered by Inspections..............    1,332,583    3,011,179
Average Case Hours/Inspection
  Safety......................................         18.5         16.1
  Health......................................         34.8         27.0
Violations--Total.............................       87,491      129,289
  Willful.....................................          395          171
  Repeat......................................        2,750        2,046
  Serious.....................................       67,439       55,090
  Unclassified................................           10           14
  Other.......................................       16,697       71,456
  FTA.........................................          200          512
Penalties--Total ($)..........................   94,981,842   59,778,046
  Willful.....................................   13,537,230    3,466,130
  Repeat......................................   10,644,022    3,594,205
  Serious.....................................   65,072,944   43,018,854
  Unclassified................................      128,000      131,500
  Other.......................................    3,907,648    7,390,658
  FTA.........................................    1,691,998    2,176,699
Average Penalty/Violation ($).................        1,086          462
  Willful.....................................       34,271       20,270
  Repeat......................................        3,871        1,757
  Serious.....................................          965          781
  Unclassified................................       12,800        9,393
  Other.......................................          234          103
  FTA.........................................        8,460        4,251
Percent Inspections with Citations Contested..         17.1         13.1
                                                    percent      percent
------------------------------------------------------------------------
Source: OSHA IMIS Inspection Reports, Fiscal Year 2009


                                       State By State OSHA Fatality Investigations and Penalties, Fiscal Year 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 No. of OSHA
                                                  Fatality                    Average Total     Median        Median
                                               Investigations      Total        Penalty Per     Initial      Current
                    State                         Conducted,   Penalties \1\  Investigation   Penalty \2\  Penalty \2\    State or Federal Program \3\
                                                 Fiscal Year         ($)            ($)           ($)          ($)
                                                  2009 \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama......................................             20        298,010         14,901         12,250       6,900   Federal
Alaska.......................................              5         21,900          4,380          4,200       2,975   State
Arizona......................................             17        164,995          9,706         16,500      10,500   State
Arkansas.....................................             15        166,675         11,112          5,500       5,500   Federal
California...................................            160      1,640,385         10,253         11,655       9,260   State
Colorado.....................................             11        278,400         25,309         15,000      12,000   Federal
Connecticut..................................              8         42,475          5,309         10,000       6,300   Federal
Delaware.....................................              3         42,040         14,013          4,000       2,520   Federal
Florida......................................             81        643,166          7,940          7,500       6,400   Federal
Georgia......................................             43        376,205          8,749         11,300       7,000   Federal
Hawaii.......................................              6         28,625          4,771          2,938       2,938   State
Idaho........................................              5         54,350         10,870          7,500       7,500   Federal
Illinois.....................................             52        129,315          2,487          4,625       4,500   Federal
Indiana......................................             42        172,913          4,117          6,000       5,250   State
Iowa.........................................             21        246,900         11,757          5,175       3,000   State
Kansas.......................................             12        178,550         14,879          7,400       7,000   Federal
Kentucky.....................................             31        125,275          4,041          3,250       2,000   State
Louisiana....................................             48         99,215          2,067          3,625       2,750   Federal
Maine........................................              6         14,160          2,360          3,750       2,500   Federal
Maryland.....................................             20         90,676          4,534          6,763       4,073   State
Massachusetts................................             23        148,200          6,444         11,750       7,000   Federal
Michigan.....................................             28        142,090          5,075          6,300       5,400   State
Minnesota....................................             14        260,600         18,614         26,600      26,200   State
Mississippi..................................             14        106,360          7,597         10,150       6,780   Federal
Missouri.....................................             20        117,125          5,856          8,838       5,250   Federal
Montana......................................              5         13,000          2,600          2,500       2,500   Federal
Nebraska.....................................             16        312,737         19,546         12,550       7,875   Federal
Nevada.......................................             11         93,100          8,464          9,100       5,950   State
New Hampshire................................              3          3,500          1,167         17,000      17,000   Federal
New Jersey...................................             39        201,567          5,168          3,000       3,000   Federal
New Mexico...................................              6         23,200          3,867          7,800       7,800   State
New York.....................................             53        625,632         11,804          5,400       4,800   Federal
North Carolina...............................             54        171,245          3,171          4,650       4,063   State
North Dakota.................................              4         27,962          6,991          5,825       5,063   Federal
Ohio.........................................             39        134,895          3,459          7,000       5,175   Federal
Oklahoma.....................................             25        281,150         11,246         10,000       6,000   Federal
Oregon.......................................             25         79,250          3,170          5,000       5,000   State
Pennsylvania.................................             43        262,315          6,100          5,850       4,888   Federal
Rhode Island.................................              4          7,900          1,975         11,025      10,075   Federal
South Carolina...............................             17         13,745            809          3,000       2,375   State
South Dakota.................................              3          7,605          2,535          4,200       2,730   Federal
Tennessee....................................             42        195,920          4,665          5,400       5,400   State
Texas........................................            167      1,562,851          9,358          6,000       5,000   Federal
Utah.........................................             14         21,600          1,543          2,750       1,250   State
Vermont......................................              2          5,250          2,625          5,250       5,250   State
Virginia.....................................             36        678,652         18,851         14,000      10,000   State
Washington...................................             32         77,625          2,426          1,600       1,600   State
West Virginia................................             10        242,880         24,288          5,400       4,450   Federal
Wisconsin....................................             23        110,045          4,785          5,550       3,820   Federal
Wyoming......................................              8         33,156          4,145          4,625       4,250   State
National Median State-Plan States............                                                       6,338       5,000
National Median Federal States...............                                                       6,750       5,000
Total or National Average \4\................          1,450     11,118,267          7,668
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ OSHA IMIS Fatality Inspection Reports, Fiscal Year 2009. Report was issued on January 7, 2010.
\2\ Median initial and median current penalties on Fiscal Year 2009 fatality investigations provided by OSHA on April 14, 2010.
\3\ Under the OSH Act, States may operate their own OSHA programs. Connecticut, Illinois, New Jersey and New York have State programs covering State and
  local employees only. Twenty-one States and one territory have State OSHA programs covering both public- and private-sector workers.
\4\ National average is per fatality investigation for all Federal OSHA and State OSHA plan States combined. Federal OSHA average is $8,152 per fatality
  investigation; State plan OSHA States average is $7,032 per fatality investigation.


    The Chairman. Thank you very much, Ms. Seminario.
    Ms. Shaw, welcome to the committee. Please proceed.

           STATEMENT OF HOLLY SHAW, PHILADELPHIA, PA

    Ms. Shaw. Thank you, Chairman Harkin and Ranking Member 
Enzi. Thank you for inviting me and allowing me the honor of 
speaking to you.
    I am here because I lost my husband to a workplace 
accident. He was killed on the job. He was too young, and it 
should not have happened.
    Scott Shaw celebrated his 38th birthday on July 13, 2002. 
Scott and I celebrated our ninth wedding anniversary on August 
14, 2002. Our son, Nicholas, celebrated his third birthday on 
September 12, 2002. His daddy wasn't there. His daddy died 5 
days before, on September 7, when he fell into the Schuylkill 
River.
    Scott fell off the barges he was working on, helping to 
dredge the river. There were only two other employees on both 
the barges at the time. A coworker of Scott's told me that 
Scott was walking from one barge to another to get oil. He was 
missed after several minutes, and his hat was discovered 
floating in the water. Scott's body was found, 2 days later.
    Scott wasn't wearing a life jacket that day. He wasn't 
required by his company to wear one. No one from the company 
checked to make sure their workers had life jackets. There was 
no life preservers on the barge. When Scott walked from one 
barge to another, he navigated old tires that were attached 
between the barges. They were uneven and not sturdy. The barges 
themselves were not the same height, so the tires were fastened 
at an acute angle. This is how the employees traveled between 
the barges. No one saw Scott go into the water. I like to think 
he hit his head and didn't know what happened. He was 6 foot 3, 
he was handsome, he was strong, and he was an excellent 
swimmer.
    This was not the first time Scott had fallen off of the 
barge. I can remember two times that Scott came home, soaking 
wet, complaining he'd fallen in. The company should have known 
then there was a problem.
    Scott's death was needless. The company Scott was working 
for, Armco Construction of Philadelphia, neglected to follow 
safety regulations. OSHA completed an investigation into 
Scott's death, and found the company had committed four serious 
violations, and they were fined $4,950.
    The first violation was committed when the employees 
weren't checked and confirmed that they were wearing life 
jackets. For this, his company was fined $2,100.
    The second violation was found because the company did not 
have life preservers on the barge. Armco Construction, Scott's 
company, was fined $750 for this violation.
    The third violation was for the way the barges were hooked 
together. Again, this was termed a ``serious violation.'' 
Again, the fine was only $1,050.
    The last violation, another serious one, was because of the 
toxic fumes that the employees were breathing when they put the 
crane away. Armco was fined $1,050 for this.
    OSHA terms these fines ``citations.'' I call it a travesty.
    Weeks Marine, the company that Armco leased the barges 
from, was not investigated. They claimed they did not know how 
the barges would be attached. They claimed they were not 
responsible for the barges after they were leased.
    The U.S. District Court for the Eastern District of 
Pennsylvania found, in a ruling made on March 31, 2006, that 
Weeks Marine did know that the barges did not have a means of 
ingress and egress. Yet, when leased to companies, their barges 
were not equipped with a gangway or a ladder.
    Weeks Marine resurfaced in controversy again in 2009. They 
subcontracted barges to Kosnac Tugs. Staten Island workers from 
Local 333, United Marine Division, protested by striking 
against Kosnac Tugs. One of the issues that was being protested 
was the unsafe practice of attaching barges. Again, Weeks 
Marine denied responsibility. The barges were attached 
haphazardly. Barges were tied together. Again, the only way to 
go from one barge to another was either jumping from barge to 
barge or navigating across makeshift, unsturdy platforms. A 
deckhand was crushed to death between two barges. Another 
family suffers because of the same negligence.
    I am here today to personalize the fact that a worker's 
life is worth more than the fines that OSHA places on these 
companies that are at fault. Scott and I have two sons, who are 
now 13 and 10 years old. Ryan, my 13-year-old, doesn't remember 
a lot about his dad. He saw a therapist, weekly, for a couple 
of years because of grief issues. He's entering high school 
next year, and was accepted to a magnet high school, a great 
honor. His dad isn't here to celebrate with me. Nicholas only 
remembers when his dad would tickle him and read to him. Ryan 
and I tell him stories about his father, so he knows his dad 
loved him very much.
    My sons are without a father. I am without a husband. We 
will never sit together and watch our sons graduate from high 
school and then college. I will never feel my husband's arms 
around me again. I will never again be able to hear his voice.
    According to the fines OSHA levied on Scott's company, 
Scott's life was worth $4,950. The company owner was not 
prosecuted. If he had been charged criminally, he would have 
been convicted of a misdemeanor. That's it. Not a felony. He 
could walk away and live his life.
    My husband didn't walk away. Scott left behind a wife, 
three sons--two sons from our marriage, and one from a previous 
marriage--two sisters, one brother, a mother, and many family 
members and friends who loved him tremendously.
    We are here today to talk about the process of fining 
companies, especially repeat violators, by OSHA. I am still, 
after almost 8 years, appalled at the paltry fines that were 
levied against Armco, Scott's company. They should have had to 
pay as dearly as I did for their ongoing neglect of workers' 
safety. They should be criminally prosecuted, if possible.
    Not only did they knowingly put their workers in danger, 
but they let their company insurance lapse, so there was no 
insurance on Scott when he was killed. This was a conscious 
action on the part of the company.
    The company that Armco leased the barges from, Weeks 
Marine, claimed that they did not know how the barges would be 
fastened together, and that they were not responsible. No 
action was taken against them.
    As I said earlier, the Staten Island shipyard workers went 
on strike last year. Not because of low wages. Not because of 
health insurance. They went on strike because Kosnac Tugs and 
Weeks Marine were knowingly exposing their workers to unsafe 
practices, including how they fastened barges together.
    I believe it's imperative that a message is sent that a 
worker's life is worth more than a couple of dollars. Companies 
that do not practice safety precautions should be fined highly, 
so it sends a message. A worker's life is invaluable, and 
companies that disregard worker safety should be sent to 
prison. They must be punished.
    I also mentioned, that Armco was fined $4,950 for four 
serious violations. One day, 2 years after Scott's death, 
searching for information on the OSHA site, I discovered that 
Armco was given the opportunity to plead down the fines. They 
only had to pay $4,000 for Scott's death. I was never notified 
that they were granted this privilege. I was never notified 
about the informal hearing that occurred. I was never given the 
opportunity to talk to OSHA before this plea deal was made with 
the company. I was never asked if I knew anything that would 
help the initial OSHA investigation.
    I am pleased that OSHA announced on April 22, 2010, a new 
system of fining companies. The fines are being raised, and 
criminal charges can be filed against repeat offenders. There 
are too many repeat offenders.
    My situation with Armco Construction and Weeks Marine is 
not unique. Jeffrey Davis was 50 years old when he was killed 
in an explosion at the Motiva Enterprise LLC Refinery in 
Delaware City, DE. There was a history of leaks in the tanks of 
sulfuric acid. These leaks were never addressed, and were one 
of the catalysts to the horrendous explosion in 2001. Jeffrey's 
body was never found, but his boots were. Eight other workers 
were injured.
    Also, the recent disaster at the Upper Big Branch mine in 
West Virginia, run by Massey Energy, has brought the subject of 
dodging violations, deliberately hiding unsafe workplaces, and 
putting greed before the lives of the workers to the forefront 
of current news, to the attention of the public. Massey has a 
proven history of unsafe workplaces, yet has not been held 
accountable. Twenty-nine hardworking men lost their lives 
because of this greed. Twenty-nine men's families suffer 
needlessly because of this greed. I am in a place to know that 
the suffering, the grief does not go away. Neither does the 
anger.
    The Chairman. Could you skip to your last paragraph?
    Ms. Shaw. Yes. Sure. Not a problem.
    As an elementary schoolteacher and as a parent, I know that 
it is important that a child understand there are consequences 
to their actions, and they must accept responsibility for what 
they have done. Adults must face their responsibility, must be 
held accountable for their actions.
    Please don't let another family suffer as we have. The more 
that companies are actually punished, the more they will 
realize they must practice workplace safety and must protect 
their workers.
    Thank you for your time.
    [The prepared statement of Ms. Shaw follows:]
                    Prepared Statement of Holly Shaw
                                summary
    My husband, Scott Shaw, was killed while working for Armco 
Construction. He fell off of a barge into the Schuylkill River on 
September 7, 2002. He left behind a family who loved him dearly.

     He fell off one of the barges he was working on, helping 
to dredge the river.
     Scott was walking from one barge to another to get oil. He 
was missed after several minutes, and his hat was discovered floating 
in the water. His body was found 2 days later.

    Armco Construction did not guarantee their workers' safety.

     Armco Construction of Philadelphia, neglected to follow 
safety regulations. OSHA completed an investigation into Scott's death, 
and found the company had committed 4 serious violations, and they were 
fined $4,950.

          1st Violation: employees weren't checked and 
        confirmed that they were wearing life jackets. Fine: $2,100.
          2d Violation: company did not have life preservers on 
        the barge. Fine: $750.
          3d Violation: the way the barges were hooked 
        together. Fine: $1,050.
          4th Violation: toxic fumes that the employees were 
        breathing when they put the crane away. Fine: $1,050.

    Weeks Marine, the company that Armco leased the barges from, was 
not investigated.

     Their claims:

          they did not know how the barges would be attached;
          were not responsible for the barges after they were 
        leased; and
          the U.S. District Court for the Eastern District of 
        PA found, March 31, 2006, that Weeks did know and did not 
        provide means of navigating between barges (ladder/gangway).

     Repeat offender:

          Leased barges to Kosnac Tugs.
          Also were fastened together in an unsafe manner.

    A worker's life is worth more than the fines that OSHA places on 
these companies that are at fault.
    Process of fining companies, especially repeat violators, by OSHA:

     A message is sent that a worker's life is worth more than 
a couple of dollars. Companies that do not practice safety precautions 
should be fined highly.
     A worker's life is invaluable, and companies that 
disregard workers safety should be sent to prison.

    There are too many repeat offenders.
    My situation with Armco Construction and Weeks Marine is not 
unique.
    How valuable family members can be to OSHA's investigation process:

     The Protecting America's Workers Act is a powerful tool:

          to allow families to have a say in investigations;
          to fight for safe workplaces; and
          to enforce stiffer penalties against offending 
        companies, and especially the repeat violators.

    Every family should know that their loved one is protected at work.
    Adults must face their responsibility, and must be held accountable 
for their actions.
    The more that companies are actually punished, the more they 
realize they must practice workplace safety, and must protect their 
workers.
                                 ______
                                 
    Chairman Harkin, Ranking Member Enzi, and distinguished members of 
the committee, thank you for inviting me and allowing me the honor of 
speaking to you. I am here because I lost my husband to a workplace 
accident. He was killed on the job. He was too young, and it should not 
have happened.
    Scott Shaw celebrated his 38th birthday on July 13, 2002. Scott and 
I celebrated our 9th wedding anniversary on August 14, 2002. Our son, 
Nicholas, celebrated his 3d birthday on September 12, 2002. His Daddy 
wasn't there. His Daddy died 5 days before on September 7, when he fell 
into the Schuylkill River. Scott fell off the barges he was working on, 
helping to dredge the river. There were only two other employees on 
both the barges at the time. A co-worker of Scott's told me that Scott 
was walking from one barge to another to get oil. He was missed after 
several minutes, and his hat was discovered floating in the water. 
Scott's body was found 2 days later.
    Scott wasn't wearing a life jacket that day. He wasn't required by 
his company to wear one. No one from the company checked to make sure 
their workers had life jackets. There were no life preservers on the 
barge. When Scott walked from one barge to another, he navigated old 
tires that were attached between the barges. They were uneven and not 
sturdy. The barges themselves were not the same height, so the tires 
were fastened at an acute angle. This is how the employees traveled 
between the barges. No one saw Scott go in the water. I like to think 
he hit his head and didn't know what happened. He was 63", handsome, 
strong, and was an excellent swimmer.
    This was not the first time Scott had fallen off of the barge. I 
can remember two times that Scott came home soaking wet, complaining 
that he had fallen in. The company should have known then that there 
was a problem.
    Scott's death was needless. The company Scott was working for, 
Armco Construction of Philadelphia, neglected to follow safety 
regulations. OSHA completed an investigation into Scott's death, and 
found the company had committed four serious violations, and they were 
fined $4,950.
    The first violation was committed when the employees weren't 
checked and confirmed that they were wearing life jackets. For this, 
his company was fined $2,100. The second violation was found because 
the company did not have life preservers on the barge. Armco 
Construction, Scott's company, was fined $750 for this violation. The 
third violation was for the way the barges were hooked together. Again, 
this was termed a ``serious'' violation. Again, the fine was only 
$1,050. The last violation, another ``serious'' one, was because of the 
toxic fumes that the employees were breathing when they put the crane 
away. Armco was fined $1,050 for this. OSHA terms these fines 
``citations.'' I call it a travesty.
    Weeks Marine, the company that Armco leased the barges from, was 
not investigated. They claimed they did not know how the barges would 
be attached. They claimed they were not responsible for the barges 
after they were leased. The U.S. District Court for the Eastern 
District of Pennsylvania found, in a ruling made on March 31, 2006, 
that Weeks Marine did know that the barges did not have a means of 
ingress and egress. Yet, when leased to companies, their barges were 
not equipped with a gangway or a ladder.
    Weeks Marine resurfaced in controversy again in 2009. They 
subcontracted barges to Kosnac Tugs. Staten Island workers from Local 
333, United Marine Division, protested by striking against Kosnac Tugs. 
One of the issues that was being protested was the unsafe practice of 
attaching barges. Again, Weeks Marine denied responsibility, but the 
barges were attached haphazardly. Barges were tied together, and again, 
the only way to go from one barge to another was either jumping from 
barge to barge, or navigating across makeshift, unsturdy platforms. A 
deckhand was crushed to death between two barges. Another family 
suffers because of the same negligence.
    I am here today to personalize the fact that a worker's life is 
worth more than the fines that OSHA places on these companies that are 
at fault. Scott and I have two sons, who are now 13 and 10 years old. 
Ryan, my 13-year-old, doesn't remember a lot about his dad. He saw a 
therapist weekly for a couple of years, because of grief issues. He's 
entering high school next year, and was accepted to a magnet high 
school, a great honor. His dad isn't here to celebrate with me. 
Nicholas only remembers when his dad would tickle him, and read to him. 
Ryan and I tell him stories about his father, so he knows his dad loved 
him very much. My sons are without a father. I am without a husband. We 
will never sit together and watch our sons graduate from high school, 
and then college. I will never feel my husband's arms around me again. 
I will never again be able to hear his voice.
    According to the fines OSHA levied on Scott's company, Scott's life 
was worth $4,950. The company owner was not prosecuted. If he had been 
charged criminally, he would have been convicted of a misdemeanor. 
That's it. Not a felony. He could walk away, and live his life. My 
husband didn't walk away. Scott left behind a wife, three sons (two 
sons from our marriage, and one from a previous marriage, who 
unfortunately was killed 3 years ago at the age of 21), two sisters, 
one brother, a mother, and many family members and friends who loved 
him tremendously.
    We are here today to talk about the process of fining companies, 
especially repeat violators, by OSHA. I am still, after almost 8 years, 
appalled at the paltry fines that were levied against Armco, Scott's 
company. They should have had to pay as dearly as I did for their on-
going neglect of workers' safety. They should be criminally prosecuted, 
if possible. Not only did they knowingly put their workers in danger, 
but they let their company insurance lapse, so there was no insurance 
on Scott when he was killed. This was a conscious action on the part of 
the company. The company that Armco leased the barges from, Weeks 
Marine, claimed that they did not know how the barges would be fastened 
together, and that they were not responsible. No action was taken 
against them. As I said earlier, the Staten Island shipyard workers 
went on strike last year. Not because of low wages. Not because of 
health insurance. They went on strike because Kosnac Tugs and Weeks 
Marine were knowingly exposing their workers to unsafe practices, 
including how they fastened barges together. I believe it is imperative 
that a message is sent that a worker's life is worth more than a couple 
of dollars. Companies that do not practice safety precautions should be 
fined highly, so it sends a message. A worker's life is invaluable, and 
companies that disregard workers safety should be sent to prison. They 
must be punished.
    I also mentioned before that Armco was fined $4,950 for four 
serious violations. One day, 2 years after Scott's death, I was 
searching for information on the OSHA site. I discovered that Armco was 
given the opportunity to plead down their fines. They only had to pay 
$4,000 for Scott's death. I was never notified that they were granted 
this privilege. I was never notified about the informal hearing that 
occurred. I was never given the opportunity to talk to OSHA before this 
plea deal was made with the company. I was never asked if I knew 
anything that would help the initial OSHA investigation.
    I am pleased that OSHA announced on April 22, 2010, a new system of 
fining companies. The fines are being raised, and criminal charges can 
be filed against repeat offenders. There are too many repeat offenders. 
My situation with Armco Construction and Weeks Marine is not unique. 
Jeffrey Davis was 50 years old when he was killed in an explosion at 
the Motiva Enterprise LLC Refinery in Delaware City, DE. There was a 
history of leaks in the tanks of sulfuric acid. These leaks were never 
addressed, and were one of the catalysts to the horrendous explosion on 
July 17, 2001. Jeffrey's body was never found. His boots were. Eight 
other workers were injured. The recent disaster at the Upper Big Branch 
mine in West Virginia, run by Massey Energy, has brought the subject of 
dodging violations, deliberately hiding unsafe workplaces, and putting 
greed before the lives of workers to the forefront of current news, and 
to the attention of the public. Massey has proven history of unsafe 
workplaces, yet has not been held accountable. Twenty-six hard working 
men lost their lives because of this greed. Twenty-six men's families 
suffer needlessly because of this greed. I am in a place to know that 
the suffering, the grief does not go away. Neither does the anger. 
That's why I speak up. That's why I represent all of those families who 
have suffered a loss.
    I am here today to not only discuss how fines to companies for 
deliberate neglect of worker safety should be raised, I also am here as 
a family member, representing other families who have lost a loved one. 
I am here to represent the miners and their families in West Virginia. 
I am here to represent the refinery workers from Washington State and 
their families. I am here to represent the workers and their families 
who were killed today, yesterday, and in the past week. I am here to 
illustrate how valuable family members can be to OSHA's investigation 
process. I am pleading with you to remember those workers we have lost 
not as a statistic, but as a person. Look at the faces of those we have 
lost. Please let family members be involved in the process, so we may 
help you. Please send a clear message to companies that safety is 
important. Lives are important. Cut into the company's profits and send 
that message.
    The Protecting America's Workers Act is a powerful tool to allow 
families to have a say in investigations, to fight for safe workplaces, 
and to let citizens know that a life is more important than greed by 
enforcing stiffer penalties against offending companies, and especially 
the repeat violators. I ask that you consider the importance of the 
Protecting America's Worker's Act. This issue is not important only on 
Worker's Memorial Day every April 28, but every day that someone goes 
to work. Workers should have the right to come home safe to their 
families. Every family should know that their loved one is protected at 
work. No family should suffer like those I represent have.
    As an elementary school teacher and as a parent, I know that it is 
important that a child understand there are consequences to their 
actions, and they must accept responsibility for what they have done. 
Adults must face their responsibility, and must be held accountable for 
their actions. Please, don't let another family suffer as we have. The 
more that companies are actually punished, the more they realize they 
must practice workplace safety, and must protect their workers.
    Thank you for your time.

    The Chairman. Thank you, Ms. Shaw.
    Dr. Brandt, welcome. And please proceed.

STATEMENT OF MICHAEL BRANDT, MS, MPH, DrPH, CIH BOARD PRESIDENT 
               (2010-2011), AMERICAN INDUSTRIAL 
              HYGIENE ASSOCIATION, LOS ALAMOS, NM

    Dr. Brandt. Thank you. Chairman Harkin and Senator Enzi, 
I'm honored and pleased to be here to testify in support of 
worker health and safety, and to prevent needless worker 
injuries, illnesses, and deaths.
    I'm here representing the American Industrial Hygiene 
Association and our membership of more than 10,000 health and 
safety professionals.
    AIHA believes we can improve worker health and safety in 
five ways. First, holding employers who willfully disregard the 
law accountable by increasing penalties and enforcement. 
Second, requiring injury and illness prevention programs in 
every workplace. Third, continuing to fund compliance 
assistance programs, such as the VPP, and consultation services 
to assist small- and medium-sized businesses. Fourth, showing 
the value of health and safety to employers and employees. And 
fifth, improving training and skill-development opportunities 
for OSHA and MSHA inspectors.
    I'll briefly expand on these comments.
    Workers expect to return home, healthy and safe. This 
requires employees, employers, and health and safety 
professionals to identify and eliminate occupational risks. To 
do so, it is essential that we have enforceable regulatory 
oversight.
    Second, while most employers are doing the right thing, 
there are still many who feel it is not worth the cost. For 
these employers, the minimal penalties for health and safety 
violations is just considered the cost of doing business. And 
as we've heard today, this must stop.
    AIHA supports increasing the penalties for egregious and 
willful violations. It is inconceivable that a willful 
violation of an OSHA rule resulting in a fatality is a 
misdemeanor with minimal penalties. Employers know that if they 
violate an EPA rule, the penalty can be severe, while violating 
an OSHA rule is simply a ``slap on the wrist.''
    Third, AIHA supports that section of the Protecting 
American Workers Act, which increases civil and criminal 
penalties for employers who violate OSHA rules and regulations, 
as well as increasing penalties for willful violations. We also 
support language to make officers and directors legally 
responsible under the act.
    Fourth, criminalizing willful violations through changes in 
regulations must be carefully considered and applied, however. 
The standard of evidence will need to be higher than it is 
today. As a result, some OSHA and MSHA inspectors may need 
increased training and skill development. AIHA supports efforts 
to ensure compliance officers achieve professional 
certification as a certified industrial hygienist or a 
certified safety professional.
    Fifth, most of America's employers are concerned about 
their workers and realize that health and safety precautions 
are good for the bottom line. An AIHA study demonstrated how 
workplace risk-reduction programs positively impacts the bottom 
line. We need to share these results with employers and 
employees.
    Sixth, penalties and enforcement alone are not sufficient 
to achieve improved worker health and safety. AIHA supports an 
approach in which stronger penalties and enforcement are 
balanced by providing more compliance assistance and greater 
funding for consultation services to employers. One of the most 
successful is the Voluntary Protection Program. AIHA supports 
continuation of this program, and hopes this Senate Committee 
feels the same way and ensures adequate funding to support VPP.
    OSHA is also taking steps to change its agency. One effort 
being considered is to require an injury and illness prevention 
program in every workplace. Assistant Secretary Michaels 
recently said that what is needed is a requirement that every 
employer establish a comprehensive worker health and safety 
program that features management leadership, worker 
participation, and structure that fosters continuous 
improvement.
    OSHA is also addressing the problem of outdated permissible 
exposure limits by creating an agency task force to compile 
options on how best to deal with the issue of the PELs, most of 
which are more than 40 years old and are scientifically 
obsolete.
    In conclusion, and with respect to funding, Congress can 
play an important role. OSHA and EPA were both created in 1970, 
yet the annual budget for OSHA is just over $550 million, while 
the EPA budget is over $10 billion. EPA's budget is 18 times 
greater than that of OSHA.
    AIHA members, and, I suspect, the family members here, do 
not understand this budget discrepancy. Society has such 
stringent penalties and enforcement for environmental matters, 
yet penalties that directly impact workers are not given the 
same importance. Shouldn't we care at least as much about 
people?
    On behalf of the AIHA, I thank you for this opportunity to 
participate and present our views. AIHA offers our assistance 
to Congress and OSHA and MSHA in any way.
    I'll be happy to answer any questions that you might have.
    Thank you.
    [The prepared statement of Dr. Brandt follows:]
      Prepared Statement of Michael T. Brandt, MS, MPH, DrPH, CIH
    Chairman Harkin and members of the committee, employees and 
employers across the United States, as well as the professionals who 
work on the front line of worker health and safety, thank you for 
holding this hearing.
    My name is Michael Brandt and I serve as the President-elect of the 
American Industrial Hygiene Association (AIHA). Today, I am here solely 
as a private citizen representing the AIHA and our membership of more 
than 10,000 health and safety professionals. I hold a doctorate in 
public health with a specialty in Environmental Health Sciences. I also 
hold master's degrees in industrial hygiene and public health policy, 
am a certified industrial hygienist, and, finally, have been involved 
in the occupational health and safety profession for more than 32 
years. I am currently employed at the Los Alamos National Laboratory in 
Los Alamos, NM.
    It is a privilege for me to represent the AIHA and our membership 
who work each day to protect worker health and safety. I appreciate the 
opportunity to appear at this hearing to discuss how we can work 
together to transform our workplaces into ones in which employees and 
employers work together to ensure worker health and safety, and by 
doing so create a competitive business advantage for American 
businesses. It goes without saying it is truly unfortunate we meet 
under circumstances where 29 workers recently lost their lives in the 
Upper Big Branch coal mine and just this past week 11 workers were lost 
in the Deepwater Horizon oil rig explosion in the Gulf of Mexico. Such 
tragedies again show us the fragility of life and why worker health and 
safety requires our full attention and resources.
    AIHA is the premier association serving the needs of professionals 
involved in occupational and environmental health and safety. We 
represent members practicing industrial hygiene in industry, 
government, labor, academic institutions, and independent 
organizations. AIHA and our members are committed to protecting and 
improving worker health and safety, and the health, safety and well-
being of everyone in our communities. One of AIHA's primary goals is to 
bring ``sound science'' and the benefit of our collective professional 
experience as practicing industrial hygienists to the public policy 
process directed at improving regulatory protections for worker health 
and safety.
    AIHA shares the concerns of many that we must apply the lessons 
learned from the foundational sciences of public health, including 
epidemiology, industrial hygiene, toxicology, engineering, and 
environmental health to further develop the technology, resources, and 
education needed to develop effective and affordable solutions to 
address health and safety risks. More recently, these resources in 
universities, government agencies, including OSHA and the National 
Institute for Occupational Safety and Health (NIOSH) and professional 
organizations have suffered from underfunding in the United States, 
eroding the competitive advantage they provide to American enterprises.
    I will focus on a few important workplace health and safety changes 
we believe can make a material difference in both the lives of workers 
and their employers.

    1. Workers and their families expect to return home from work safe 
and healthy. Workers should not become ill, suffer injuries, or die on 
the job. Providing a healthy and safe workplace requires that 
employees, employers, and health and safety professionals collaborate 
to identify and eliminate occupational risks. In addition, it is 
essential that we have enforceable regulatory oversight that rewards 
successful efforts to protect worker health and safety, and is free 
from tactics intended to challenge and cast doubt over the validity of 
regulatory findings and delay investing in hazard control measures.
    2. Most of America's employers understand the critical importance 
of health and safety and are concerned about the health and safety of 
their workers. These employers implement health and safety management 
systems and hazard identification and control programs to ensure that 
their workers go home safe and healthy each and every day. They have 
recognized that healthy and safe workers are good for their business 
and represent a competitive advantage for U.S. business.
    In America today employers no longer need to choose between 
protecting the health and safety of workers and making money. High 
performing organizations realize that investing in health and safety 
protections are good for the bottom line and good for workers. AIHA has 
clearly demonstrated this competitive advantage through a value study 
conducted for our members. Conducted on the shop floors across the 
United States, this ``Value of the Profession Study'' clearly 
demonstrates how occupational health programs and workplace risk 
positively impacts the bottom line, not only in healthier and safer 
employees, but in a positive return on an organization's investment in 
health and safety.
    This important study was conducted in collaboration with NIOSH and 
we believe OSHA, MSHA and NIOSH should collaborate further with AIHA to 
develop additional case studies across industry, business, and 
commercial sectors and share the case studies results, success stories, 
and the value methodology with employers. In this way, together we can 
continue to share cost-effective solutions to common sets of 
occupational risks and hazards with employers, employees, and the 
regulatory community.
    3. While most employers are ``doing the right thing'' with 
investment in healthy and safe workplaces, there are still too many who 
avoid this investment in their workers because they feel the investment 
is not worth the cost. It is these employers who must be educated about 
the benefits of providing a safe and healthy workplace, and if 
education does not affect their decisionmaking behavior, they must be 
held accountable for making decisions that injure, kill, or sicken 
workers.
    For many, the minimal penalties for health and safety violations is 
a small price to pay and does not affect their decisionmaking. It's 
just a small cost of doing business. This must change!
    AIHA supports increasing the penalties for egregious and willful 
violations. It is inconceivable that a willful violation of an OSHA 
rule or regulation resulting in a fatality is considered a misdemeanor 
resulting in minimal penalties. Rep. George Miller in a U.S. House 
Committee hearing earlier this month commented that:

          ``These penalties for failing to protect workers pale in 
        comparison to the penalties for failing to protect animals or 
        the environment generally. Even maliciously harassing a wild 
        burro under the Federal Wild Horses and Burros Act can bring 
        twice as much prison time as killing a worker after willfully 
        violating the law.''

    It has long been known to employers that if they are to violate an 
EPA rule the penalty can be financially and operationally severe while 
violating an OSHA rule is simply a ``slap on the wrist.''
    AIHA supports that section of the Protecting America's Workers Act 
(S. 1580) that considerably increases both civil and criminal penalties 
for those employers who violate OSHA rules and regulations. Similar 
increased penalties are needed at MSHA. AIHA also supports increasing 
penalties for egregious and willful violations. Consistent and 
substantial penalties are one of society's primary means to deliver 
some measure of justice and improve conditions that affect public 
health and worker health and safety.
    Criminalizing willful violations through changes in the regulations 
must be carefully considered and applied. The standard of evidence for 
willful violations will have to be higher than it is today and OSHA and 
MSHA inspectors will need increased training and skill development to 
meet the level of evidence required.
    AIHA supports OSHA's efforts to ensure compliance officers achieve 
professional certification as CIHs and CSPs. A similar effort is needed 
of MSHA inspectors. Establishing criminal violations needs to be based 
on the weight of evidence collected and evaluated by health and safety 
professionals using a variety of information sources, both quantitative 
and qualitative. It is essential that the regulatory process provide 
for carefully considering the complex conditions affecting risks in the 
workplace and the determination of risk at a given point in time.
    AIHA supports language that would also make officers and directors 
legally responsible when it is clearly demonstrated that they had, or 
should have had, direct knowledge and authority for the violation and 
did not act to mitigate the risk associated with a known violation. 
Occupational health and safety professionals should not become the 
``scapegoat'' if their recommendations are not followed. In this era of 
sustainability and social responsibility, the hallmark of an effective 
occupational health and safety regulatory program needs to be guided by 
transparency and accountability.
    4. Strong penalties and enforcement alone are not sufficient to 
achieve improved worker health and safety. AIHA supports an approach in 
which stronger penalties and enforcement are balanced by providing more 
compliance assistance and supporting efforts to develop occupational 
health and safety professionals.
    Employers need guidance and support to identify hazards and control 
measures, and to understand regulatory requirements and how to comply 
with rules and regulations in ways that are practical and in harmony 
with the employer's daily business practices. There are numerous 
successful ways in which employers receive the support and assistance 
they need.
    One of the most successful is the Voluntary Protection Program 
(VPP). VPP sites add value to worker health and safety protection 
through a systematic approach of management and employee involvement in 
creating a sustainable healthy and safe workplace. This program has 
grown considerably since its inception and AIHA supports continuation 
of the program. OSHA has indicated its continued support of the 
program, albeit appropriating fewer resources to the program in the 
future. A 2009 Government Accountability Office report stated that 
improved oversight and controls would better ensure program quality. 
AIHA hopes OSHA and the Voluntary Protection Program Participants 
Association (VPPPA) work together to see that the program remains a 
viable and successful means to better worker health and safety. AIHA 
hopes this Senate Committee feels the same way and ensures adequate 
funding to support the VPP.
    Another incentive is to provide greater funding for consultation 
services for small- and medium-size businesses, which are historically 
underserved workplaces in terms of health and safety protection and 
health and safety compliance. These companies and businesses too often 
do not have access to health and safety professionals or have the 
financial resources, skills, or technical expertise to implement many 
of the OSHA required programs and regulations to protect its workforce. 
AIHA is aware of the limited resources of the Federal Government and 
suggests OSHA consider additional ways to recognize and use an existing 
pool of qualified and competent professionals such as industrial 
hygienists and safety professionals to provide employers the needed 
guidance and technical expertise.
    5. And finally, the agency itself must make some changes in how it 
does business. OSHA must address the problems with the rulemaking 
process and the difficulty in updating standards. The agency recognizes 
these problems and has recently taken the first step to address them.

    One of these efforts is implementation of an Injury and Illness 
Prevention Program in every workplace. AIHA could not have said it 
better than Assistant Secretary of Labor for OSHA Dr. David Michaels 
when he recently stated that what is needed is:

          ``a requirement that every employer establish a comprehensive 
        workplace safety and health program that features management 
        leadership, worker participation, and structure that fosters 
        continual improvement.''

    OSHA has also taken the first step in addressing the long-standing 
problem of outdated permissible exposure limits (PELs) by creating an 
agency task force to compile options on how best to address the issue 
of the PELs, most of which are 40 or more years old. These outdated 
standards place us behind the rest of the world in health and safety 
protections for workers, put our workers at risk, and erode the 
competitive advantage of American businesses.
    AIHA offers our support for both of these efforts.
                               conclusion
    In conclusion, AIHA believes we can improve worker health and 
safety by:

     Showing the value (including financial and other benefits) 
of health and safety to employers and employees.
     Holding employers who willfully disregard the law 
accountable by increasing penalties and enforcement on those who fail 
to protect workers. Active enforcement would ensure that all 
organizations are complying with the OSHA regulations. This would level 
the playing field for all businesses, particularly the compliant.
     Continuing and funding compliance assistance programs such 
as VPP and providing adequate resources to assist small- and medium-
size businesses.
     Requiring injury and illness prevention programs in every 
workplace.

    AIHA members and many others believe that working together we can 
eliminate injuries and fatalities in the workplace. Organizations that 
make financial investments in health and safety anticipate a positive 
return on that investment by keeping workers healthy and safe and 
improving operational performance. There is a cost for investing in 
health and safety, and in compliance. Organizations that don't invest 
in OSHA compliance have an unfair financial advantage. It is better for 
employers and employees if OSHA sets good and reasonable standards, 
enforces them uniformly, and the consequences for non-compliance are 
financially and legally meaningful.
    As for resources, this is where Congress can play an important 
role. OSHA and EPA were both created in 1970, yet it is inconceivable 
that the annual budget for OSHA is just over $550 million while the EPA 
budget is over $10 billion. Occupational health and safety 
professionals do not understand this budget discrepancy. Society has 
such stringent penalties and enforcement for environmental matters, yet 
the penalties that directly impact workers are not given the same 
importance. Shouldn't we care at least as much about people?
    AIHA members put the health and safety of people first and that is 
why AIHA supports stronger penalties and enforcement as well as good 
and reasonable standards. America's workers deserve it.
    On behalf of AIHA, thank you for this opportunity to participate 
and present our views. AIHA offers our assistance to Congress and OSHA 
in any way possible.
    I would be happy to answer any questions the committee may have.

    The Chairman. Thank you very much, Dr. Brandt.
    Now we turn to Kelli Heflin.
    Welcome, and please proceed.

           STATEMENT OF KELLI HEFLIN, COORDINATOR OF

           REGULATORY COMPLIANCE AND SAFETY MANAGER,

                SCOTT'S LIQUID GOLD, DENVER, CO

    Ms. Heflin. Chairman Harkin, Ranking Member Enzi, thank you 
so much for the opportunity to speak to you today.
    I'm here today to talk about the OSHA Voluntary Protection 
Program, what it means to my company, and to ask you to reject 
the plan laid out in the Administration's fiscal year 2011 
budget proposal.
    VPP sites go above and beyond what OSHA requires. In 
addition to a rigorous audit, each VPP company must submit, 
annually, a self-evaluation that analyzes the elements of the 
program, an evaluation of meeting those elements, and what 
improvements they can make to strengthen that program at their 
site.
    Participation in the VPP has been invaluable to me, in my 
role as safety manager at Scott's Liquid Gold. It has given me 
access to education based on real-world experience, networks of 
experts, and other resources. It has also given me the ability 
to engage my workforce in a safety program that they have 
ownership of.
    Scott's Liquid Gold started in a garage, almost 60 years 
ago, as a family business. Currently, we have about 65 
employees at our facility. Our products are manufactured 
totally in the United States. We make a conscious effort to 
purchase raw materials also in the United States. If you look 
at our major competitor's label it states, ``Distributed by 
(blank).'' That means it is not manufactured here in this 
country. We manufacture several household chemical products, 
and a line of skin care called Alpha Hydrox.
    The past year has been challenging for us, as a small 
company, as it has for everyone. There was one thing that 
remained consistent, and that was our safety program. Prior to 
implementing VPP elements at our worksite, our injury rate was 
13 reportables. After implementing the elements and being in 
the program for several years, we reduced our injury rate to 
zero in 2008.
    The VPP has a proven track record. Companies that 
participate in the VPP have about 52 percent less injuries and 
illnesses than their BLS counterparts. There are significant 
direct-cost savings with reduced insurance rates and reduced 
workers compensation claims. However, the most important change 
that I have noticed is our employees' involvement in their own 
safety.
    One of the primary elements in VPP is employee involvement. 
Our employees have taken ownership of the program and made a 
commitment to safety, both at work and at home.
    As a small business, we face a number of disadvantages in 
this global economy. As a safety and health management system, 
VPP produces a culture change. Workers who are healthy and 
injury-free are at work, they're not absent. Less time is spent 
replacing them with temporary workers, and less training time 
is spent getting those workers up to speed.
    VPP is very important in other ways, as well. At Scott's 
Liquid Gold, our employees take a massive amount of pride in 
telling others that they achieved VPP status.
    I could go on and on about the benefits of VPP and the 
great people who participate in the program, but I'm also here 
as a citizen and an American worker. I pay my taxes, vote in 
all the elections, and I mailed census on time.
    [Laughter.]
    I'm not here as someone with a political agenda. I don't 
owe anybody any favors. And I don't make promises to special 
interest groups or organizations, at the expense of very 
valuable programs, such as VPP.
    I am here to object to the current proposal to cut direct 
funding to the VPP, or to seek alternative funding for the 
program. It is imperative that appropriations language be 
included in the fiscal year 2011 proposal.
    The VPP is helping OSHA with their mission of keeping 
American workers safe. We have extended help in other ways to 
alleviate the strain on OSHA resources. The cooperative 
programs budget for fiscal year 2010 was increased. The agency 
has reduced the number of VPP onsite audits and recertification 
audits completed. While my company has done more with less, the 
agency has done less with more.
    The proposed budget for fiscal year 2011 directs funding to 
enforcement and leaves VPP out in the cold, even though it's a 
proven program for reducing injuries and illness in the 
workplace. The alternative funding being proposed is a fee-
based system, and I can tell you, Scott's Liquid Gold 
vehemently opposes this system. The fee-based system not only 
adds another layer of cost to our already- strained company 
budget, it reduces the integrity of the program.
    The VPP was intended to be a three-way partnership between 
OSHA, management, and labor. With the Department of Labor's 
request to eliminate direct funding for VPP, the agency 
effectively took away that leg of the partnership, violating 
their own intention under the OSH Act of assisting employers 
and employees in eliminating hazards at the workplace. The 
agency is not only doing a disservice to companies that have 
committed incredible resources--time, money, employees--to 
keeping American workers safe, but it is doing a disservice to 
their mission of ensuring the health and safety of all the 
Nation's workers.
    The proposed fee-based funding will exclude small 
businesses, such as Scott's Liquid Gold, from participating in 
the VPP. In return, OSHA will lose my company's commitment to 
helping to educate and train other worksites that may not have 
the kind of safety program that VPP requires.
    Two of the goals of the agency are to ensure safe and 
healthy workplaces for the Nation's workers, and to give 
workers a voice in the workplace. Enforcement does not give a 
voice to the workers. The elements of VPP specifically give 
that voice to the employees by requiring their participation. 
OSHA has a huge toolbox, with a variety of tools. By committing 
most of the cooperative program's budget to enforcement, they 
have effectively gotten rid of most of their tools except for a 
metaphorical hammer.
    One of the first things that you learn is that you need to 
use the right tool for the job at hand. By only having a 
hammer, they are excluding tools for educating companies who 
have less than stellar safety programs. Hammers are reactive, 
not proactive. In seeking alternative funding for VPP, the 
agency is keeping that tool, but they're locking it up and 
making it available only to the companies that pay for it. This 
seems to directly conflict with Section 2(b)(1) of the OSH Act.
    VPP is not just one tool. It provides many tools for OSHA. 
It provides manpower, through special government employees; it 
provides education, through outreach and mentoring; it provides 
the thoughts and expertise of over 900,000 American workers 
from over 2,300 worksites, giving a voice to workers about 
their safety, which is one of the stated goals of the agency. 
Why would they rely on enforcement actions only?
    Realistically, most sites will never see an OSHA compliance 
officer, and will continue to put employees at risk with 
unabated hazards. Enforcement actions are usually after the 
fact and in response to loss of life or imminently hazardous 
situations. Wouldn't the agency rather save lives than respond 
to the aftermath of a catastrophic event?
    OSHA needs a complete toolbox. And VPP is part of that. 
Please reject the fiscal year 2011 budget until it includes 
funding for this very important program.
    Thank you very much.
    [The prepared statement of Ms. Heflin follows:]
                   Prepared Statement of Kelli Heflin
    Good afternoon, Chairman Harkin, Ranking Member Enzi and members of 
the HELP committee and thank you for the opportunity to speak on behalf 
of Scott's Liquid Gold-Inc., a small manufacturing company located in 
Denver, CO. My name is Kelli Heflin and I am the Regulatory Compliance 
and Safety Manager at Scott's Liquid Gold-Inc. I am here today to talk 
about the Voluntary Protection Program, what it means to my company and 
to ask you to reject the plan laid out in the Administration's fiscal 
year 2011 budget proposal.
    The Voluntary Protection Program (VPP) was formally announced by 
OSHA in 1982 and the first site, San Onofrio, CA was approved. The 
legislative underpinning for VPP is Section (2)(b)(1) of the OSH Act of 
1970, which declares Congress's intent,

          ``to assure so far as possible every working man and woman in 
        the Nation safe and healthful working conditions and to 
        preserve our human resources (1) by encouraging employers and 
        employees in their efforts to reduce the number of occupational 
        safety and health hazards at their places of employment, and to 
        stimulate employers and employees to institute new and to 
        perfect existing programs for providing safe and healthful 
        working conditions.''

    VPP sets performance-based criteria (4 elements and 133 sub-
elements) for a managed safety and health system, invites sites to 
apply, then assesses these sites against these criteria. OSHA's 
verification includes an application review and a rigorous onsite 
evaluation by a team of OSHA safety and health experts. This team 
usually includes Special Government Employees (SGEs) who are people 
like myself, who are familiar with the VPP model and have attended 
training to assist on these audits. VPP company employees who become 
SGEs do so on a voluntary basis.
    Once the audit is complete, the team recommends the site for one of 
three programs (this recommendation is approved by the National OSHA 
office at the Department of Labor).

     Star--this site meets all criteria and injury and illness 
rates are below the BLS industry average.
     Merit--this site meets the criteria, but some of the 
elements may need improvement and injury rates may be a bit high, but 
the trend is toward reduction. A site may remain in Merit status for up 
to 3 years, at which time, they will have a Merit to Star audit. There 
are Merit goals established by the team to move the site to Star 
status.
     Star Demonstration--this is for companies who may be a 
mobile workforce, such as a construction or steel erection project.

    VPP sites go above and beyond what OSHA requires. In addition to 
the rigorous audit, each VPP company must submit annually a self-
evaluation that analyzes the elements of the program, what they are 
doing to meet those elements, how they are doing at meeting the 
elements and what improvement they can make to strengthen the program 
at their site. This is far greater scrutiny and attention than non-VPP 
worksites, which may do little or nothing proactively and, given the 
number of OSHA compliance officers and the number of worksites, are not 
likely to see an OSHA inspection for decades unless they have a 
catastrophic accident.
    The companies that participate in the VPP routinely connect with 
other sites through mentoring and outreach activities at conferences 
and provide resources to OSHA through the SGE program. OSHA does not 
reimburse companies for the time and travel of the SGEs--VPP companies 
absorb all the costs and expenses for their SGEs to participate in VPP 
onsite audits. Participation by SGEs can be as an ``expert'' (i.e., 
Industrial Hygienist) or a generalist (familiar with the VPP model or a 
unique standard, such as PSM). They are full team members and audit 
records, programs, interview employees and make recommendations on 
compliance issues or improvement items. In my experience as an SGE, 
employees at sites undergoing a VPP audit seem to be more willing to 
speak to a ``non'' OSHA auditor. It isn't anything personal against 
OSHA, but it is a matter of talking with someone else who works for a 
company, rather than OSHA. SGEs can be managers, supervisors or labor. 
It truly provides a unique perspective on the audit and both the 
potential VPP company and SGEs can learn from the experience.
    Most importantly, the VPP promotes a partnership between Labor, 
Management and OSHA.
    Participation in VPP has been invaluable to me in my role as 
Scott's Liquid Gold Safety Manager. It has given me access to education 
(based on real world experience), networks of experts and resources 
that I would not have otherwise had the opportunity to access. It has 
also given me the ability to engage my workforce in a safety program 
that they have ownership of.
    My introduction to safety was at the Rocky Flats Plant in Colorado. 
It was a scary place. Every Sunday I would drive by the protestors at 
the site as I drove back to the University of Colorado. Then I got a 
job there. One of the first things I learned was to rely on the 
experience of the people I worked with. They took this rookie under 
their collective wings and educated me to respect radiation and other 
hazards, not to fear them. The second thing I learned was that I am 
responsible for my safety and for my co-worker's safety and that I have 
the duty to report any hazard. Management is responsible for helping to 
correct the hazard and insuring that the hazard is permanently abated 
or that I have the proper training to recognize what I need to do to 
protect myself. I have carried those lessons for almost 20 years.
    Scott's Liquid Gold-Inc. started in a garage about 60 years ago as 
a family business. Currently we have about 65 employees at our Denver 
facility. Our products are manufactured totally in the USA. We have 13 
production employees at our site and it is the only manufacturing 
facility we have. We make a conscious effort to purchase U.S.-based raw 
materials. If you look at our major competitor's labels, it states 
``Distributed by:___.'' That means the product is produced outside the 
USA. We manufacture several household chemical products, including our 
flagship product, a wood cleaner, an air freshener product and a line 
of skin care called Alpha Hydrox. The past year has been challenging 
for us as a small company, as it has for everyone. There was one thing 
that remained consistent, our safety program.
    We entered the VPP in 2003 as a Merit site. Our injury rate was a 
bit high and we needed to improve our Process Safety Management program 
(PSM). We started working toward VPP in 2002, shortly after I arrived. 
Our injury rate was pretty high at that time. In 2001, we had 13 
reportable injuries. These injuries ranged from lacerations and 
ergonomic problems to a broken arm. At the end of 2002, we had two 
reportables and two injuries that required first aid treatment only. In 
2008, we had zero injuries. The VPP has a proven track record. Most 
companies that participate in the VPP have about 52 percent less 
injuries and illnesses than their BLS counterparts. There are 
significant direct cost savings with reduced insurance rates and 
reduced workers compensation claims. However, the most important change 
that I have noticed is our employees' involvement in their own safety. 
One of the primary elements in VPP is employee involvement. Our 
employees have taken ownership of the program and made a commitment to 
safety both at work and at home.
    As a small business, we face a number of disadvantages in this 
global economy. We don't have access to a lot of resources, we don't 
have a large staff of in-house experts and we can't purchase a lot of 
new technology, but through the VPP, we have a huge network to turn to 
when we need help with a particular issue. There are about 2,300 sites 
in the VPP and almost 1 million people are employed by those sites. We 
also have a great relationship with the Region 8 OSHA people. I have 
appeared on several panels on their behalf, discussing VPP as a viable 
solution to unsafe worksites. Even if a company does not want to pursue 
the recognition, they can still implement the elements with help from a 
mentoring company and establish a good safety program.
    I have a personal interest in safety and health excellence. My 
grandfather worked for a company, processing uranium ore. He was a 
member of the Oil, Chemical and Atomic Worker's Union. This was pre-OSH 
Act. He eventually died from a disease I believe was caused by his 
exposure to acids and radioactive ore.
    My uncle was injured badly in an industrial accident and was out of 
work for over a year. Several years later, he was killed in a 
construction accident, leaving a wife and two teenagers behind. I am my 
grandfather and uncle's legacy. My work in safety may save another 
family from going through this grief. I believe enforcement has its 
place, but I also believe that being pro-active in safety will prevent 
accidents and fatalities from happening in the first place.
    VPP not only provides resources to the almost 1 million employees 
that participate in the program, but it also provides OSHA with much-
needed support to keep American workers safe. The SGE program is one of 
these resources. Mentoring and Outreach by the VPP companies are 
another way that they are relieved of the burden of educating companies 
that are not safe in how to establish a good health and safety program. 
Employees of VPP sites are ambassadors for the VPP. They participate 
through mentoring and teaching classes at various safety conferences 
throughout the country. Scott's Liquid Gold was named Mentor of the 
Year in our region in 2009. Our CEO believes very strongly in the 
mentoring program. When I visit another worksite, I usually take two 
employees with me who are well versed in the VPP elements and let them 
explain the program to the other site. On some occasions, I have found 
that employees are not willing to speak their minds when their 
management is in the room. I have asked their management to leave and 
we have a pretty honest dialogue about what VPP can do. The most common 
question is ``We already have a pretty safe site, what are they going 
to do for me?'' My response is usually ``How about give you control 
over your own destiny?''
    VPP has additional benefits for participating companies. Companies 
have lower injury and illness rates, they have lower workers 
compensation costs and usually their insurance premiums are lower. The 
employees at these companies are healthier and more productive. It 
affects companies' bottom lines in a good way--not only are costs 
lower, workers who are healthy and injury-free are at work, not absent. 
Less time is spent replacing them with temporary workers and training 
time spent getting those workers up to speed. VPP is very important in 
other ways as well. At Scott's Liquid Gold, our employees take a 
massive amount of pride in telling others that they achieved VPP Star 
status. They take safety seriously and they understand all of the 
benefits under VPP. Our CEO is certainly a proponent of the program and 
allows whatever time is necessary for safety meetings, safety training, 
my time away from the facility and two stretching classes each day. We 
have almost 95 percent participation in manufacturing and anywhere from 
25-40 percent in the administration building (depending on the day). 
The stretching classes have reduced our ergonomic complaints to almost 
zero. It's also an opportunity for me to check in with our employees 
about any concerns or suggestions they have.
    I could go on and on about the benefits of VPP and the great people 
who participate in the program, but I am also here as a citizen and an 
American worker. I pay my taxes, I vote in all elections and I mailed 
my census on time. I am not here as someone with a political agenda, I 
don't owe anyone any favors and I don't make promises to special 
interest groups or organizations at the expense of a very valuable 
program such as VPP. I am here to object to the current 
Administration's proposal to cut direct funding to VPP or to seek 
``alternative'' funding for this program. It is imperative that 
appropriations language be included in the fiscal year 2011 proposal. 
The VPP is helping OSHA with their mission of keeping American workers 
safe. We have extended help in other ways to alleviate the strain on 
OSHA resources. The Agency actually increased their cooperative 
programs budget for fiscal year 2010, but has reduced the number of VPP 
onsite audits and recertification audits completed. While my company 
has done more with less, the Agency has done less with more. The 
proposed budget for fiscal year 2011 directs funding to enforcement and 
leaves VPP out in the cold, even though it is a proven program for 
reducing injuries and illness in the workplace. The alternative funding 
being proposed is a fee-based system and I can tell you, Scott's Liquid 
Gold vehemently opposes this system. I can assure you that out of the 
other 2,300 companies, a majority have the same feeling. This fee-based 
system not only adds another layer of cost to our already strained 
company budget, it reduces the integrity of the program. I worked for a 
company who obtained an ISO certification and as far as I could tell, 
it meant nothing except that you had done the proper paperwork and 
documentation. I don't want to see that happen to the VPP. In addition, 
employees of VPP companies take a great amount of pride in a 
cooperative partnership with OSHA. My co-workers noticeably stand 
taller when talking to OSHA representatives and it is a source of my 
own pride to hear them talk to other worksites about working with OSHA 
and obtaining VPP Star. The VPP was intended to be a three-way 
partnership between OSHA, Management and Labor. With the Department of 
Labor's request to eliminate direct funding for VPP, the Agency 
effectively took away that leg of the partnership, violating their own 
intention under the OSH Act of assisting employers and employees in 
eliminating hazards at the workplace.
    With no direct funding, VPP will not survive as the premiere 
recognition program for companies. The Administration is not only doing 
a disservice to companies that have committed incredible resources--
time, money, employees--to keeping American workers safe, but it is 
doing a disservice to the Agency that has been tasked with ensuring the 
health and safety of all the Nation's workers.
    The proposed alternative funding will exclude small businesses such 
as Scott's Liquid Gold. We simply cannot take on any more cost centers. 
We have committed to providing our knowledge and expertise on the same 
level as a Valero or GE. I spend a lot of time mentoring and 
participating in outreach events. I am always available as an SGE in 
the event the Region VIII VPP manager needs me. I generally let the 
other SGEs in our region have first shot at an audit because I do so 
much outreach, but I am certainly available if needed.
    Small businesses such as ours don't get many breaks and 
establishing a fee-based VPP will be a burden that we will probably 
choose not to undertake. OSHA will lose my company's commitment to 
helping to educate and train others who may not have the kind of safety 
program that VPP requires. We appreciate the VPP for the resources it 
provides and the partnership with OSHA, but we cannot support another 
cost to our bottom line.
    Two of the goals of the Agency are to ensure safe and healthy 
workplaces for the Nation's workers and to give workers a voice in the 
workplace. Enforcement does not give a voice to the workers, the 
elements of VPP specifically give that voice to the employees by 
requiring employee participation. OSHA has a huge tool box with a 
variety of tools. By committing most of the cooperative programs budget 
to enforcement, they have effectively gotten rid of most of their tools 
except a hammer. One of the first things that you learn is that you 
need to use the right tool for the job at hand. By only having a 
hammer, they are excluding tools for educating companies who have less 
than stellar safety programs. Hammers are reactive, not proactive. In 
seeking ``alternative'' funding, the Agency is keeping that tool, but 
locking it up and making it available only to those who pay to use it. 
This seems to directly conflict with Section 2(b)(1) of the OSH Act. 
VPP is not just one tool, it provides many tools for OSHA. It provides 
manpower through SGEs. It provides education through outreach and 
mentoring. It provides the thoughts and expertise of over 900,000 
American workers--giving a VOICE to workers about their safety, which 
is one of the stated goals of the Agency. Why would they rely on 
enforcement actions only? They could never have the staffing required 
for worksite inspections of every work place in the United States.
    There are approximately 2,300 companies who participate in the VPP, 
covering over 900,000 workers with more sites indicating interest every 
day. Those 900,000 workers are full participants in workplace safety 
and can educate other companies and show them what can be accomplished. 
Most sites will never see an OSHA compliance officer and will continue 
to put employees at risk with unabated hazards. Enforcement actions are 
usually after the fact--reactive--and usually is in response to loss of 
life or imminently hazardous situations. Wouldn't the Agency rather 
save lives than respond to the aftermath of a catastrophic event?
    OSHA needs a complete tool box and VPP is part of that. Please 
reject the fiscal year 2011 budget until it includes funding for this 
very important program.
    Thank you.

    The Chairman. Thank you, Ms. Heflin. So, you're opposed to 
a fee-based system?
    Ms. Heflin. Yes, sir. I am.
    [Laughter.]
    The Chairman. Well, we're looking at that. It's sort of 
closely akin to other proposals that have been made for fee-
based systems in the past. I don't know that I can say in 
``every'' situation, but mostly I've been opposed to fee-based 
systems, because what you're trying to do is either protect the 
public or do something that inures to the benefit of society 
at-large, that type of thing. Therefore, it ought to be picked 
up by society at-large, rather than just the individual 
company, or whatever it is that you're looking at for the fee. 
I'd have to think about it in this context.
    One thing, looking at your testimony, you stated that VPP 
companies go above and beyond what OSHA requires. If that's the 
case, it would seem to me that you have nothing to fear from 
increased penalties for violations, especially for knowing or 
willful violations. Is that so? I mean, tell me how you feel 
about increasing the penalties for knowing and willful 
violations.
    Ms. Heflin. We're not perfect. VPP companies are not 
perfect. We have violations. They're usually very minor. VPP 
companies are very familiar with the regulations and the 
standards, chapter and verse, and we generally try and go 
beyond what OSHA requires.
    I'll give you an example of a not-too-hazardous situation--
forklift operator training. The standard only requires that it 
be done every 3 years. My company does it every year. That's 
going beyond what the standard requires. Most companies go 
beyond that.
    The Chairman. Again, it just seems to me that, since you're 
doing, obviously, good things, and all of these VPP companies 
are--you've heard the statements made before, and in the 
previous panel, about how the penalties for environmental 
violations are millions of times more than it is for violation 
of safety.
    Ms. Heflin. Right. I wouldn't object to increased 
penalties. When you hear stories, like Ms. Shaw's or the miners 
in West Virginia. My own family members were killed on a 
construction accident. I don't object to that at all. That's 
definitely not what my objection is.
    The Chairman. Oh, OK.
    Ms. Heflin. My objection is--you need to keep direct 
funding in for a program that actually reaches out to other 
companies.
    The Chairman. I understand that now. OK, fine. I get it. 
OK. Thank you.
    Dr. Brandt----
    Dr. Brandt. Yes.
    The Chairman. [continuing]. Could you expand on how 
increasing penalties for those who deliberately ignore our 
health and safety laws will change what you call, ``the 
economics of safety?''
    Dr. Brandt. Our association had sponsored a study in which 
we examined the practices of various employers around the 
country. What we discovered is that those companies that invest 
in health and safety saw a positive return on that investment.
    I'll give you an example. One of our case studies was a 
helicopter manufacturer. That manufacturer decided to eliminate 
a chromium (VI)-based compound in the primer paint used for 
painting aircraft parts. They were able to substitute that very 
hazardous and toxic material with a less toxic material. As a 
result, they were able to--and together with some work 
practices and personal protective equipment--eliminate worker 
exposure to chromium; and they were able to improve product 
quality, so the parts didn't need to experience rework, they 
didn't have to re-sand the parts; and with the time saved over 
the course of the year--because this was a very critical step 
in the manufacturing process--that organization was able to 
produce one additional aircraft over the course of the year.
    In this case, investing in work--the point is, in the 21st-
century we no longer have to choose between worker health-and-
safety and making money. Employers need workers, workers need 
employers. We heard that today, where the miners were concerned 
about--if it's a nonrepresented mine, they're concerned that 
they might lose their jobs or the mines might be shut down. And 
then what? How were they going to provide for their families? 
Well, in America today, we don't need to make that choice, 
because we can realistically and thoughtfully invest in good 
health and safety practices, and companies can benefit, with 
various benefits, not only financial, but the intangibles, as 
well.
    The Chairman. Thank you very much.
    Dr. Brandt. You're welcome.
    The Chairman. Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    I have to agree with what I've heard here. I would mention 
that, in the Budget Committee last week, the Administration 
plan to defund the VPP program was unanimously rejected. Again, 
it was just $3.5 million, and we were dealing with several 
trillion dollars, so I don't know how significant that was.
    Kind of the way I got started in safety. I'm the accountant 
in the Senate. And I went to see the president of this company, 
and I said, ``You know, if you had a safety program, you'd have 
more people available for work, and you'd save a lot of 
money.'' And he said, ``OK, do it.'' I said, ``No, no''----
    [Laughter.]
    Senator Enzi [continuing]. ``I'm the accountant. I'm not 
the safety guy.'' But, he couldn't find anybody else to do it, 
so I did a safety program, and it did just exactly that, it 
reduced the cost tremendously, and he had more people available 
to do the work. I've been a firm believer in that, and I've 
worked on it ever since I got here.
    Now, we talked about repeat violations and increasing the 
fines. One of the things that's always disturbed me is that if 
a person is cited twice by OSHA, then they're a repeat offender 
and they fall into a different category. One of the things that 
I noted, when I was doing the safety program, is that there are 
a lot of employees, on a hot day, that just don't like to wear 
a hard hat. Now, there's a reason for wearing a hard hat, and 
it's actually to keep you from being killed. If the person 
doesn't wear the hard hat, it's not the employee that gets 
fined, it's the employer that gets fined. And if two people 
aren't wearing their hard hat, they're a repeat offender.
    We have to be careful, when we devise these penalties, so 
that the person most in control of the situation is the one who 
has to have some responsibility for the situation. I don't know 
exactly how to do that. I've proposed that before.
    Another thing that I noted was that, if there was drug and 
alcohol testing, it brought down worksite accidents 
dramatically, as well--doing that in some businesses.
    Mr. Brandt, do you support workplace drug and alcohol 
testing programs as a way to maintain safer workplaces?
    Dr. Brandt. Yes, I do, Senator.
    Senator Enzi. OK. Thank you. Thank you for brevity of the 
answer, too.
    [Laughter.]
    I was glad to see that you supported VPP. What do you think 
is responsible for the considerable growth of new VPP members 
over the last decade? And does that build a culture of safety 
in the workplace?
    Dr. Brandt. A culture of safety reflects the values, 
traditions, and beliefs of any organization. To have a safety 
culture requires participation, management leadership, and I 
just don't mean, well, I write a slogan--that doesn't represent 
leadership--but leaders who walk the spaces, who walk the talk, 
who support workers. Similarly, workers need to participate 
collaboratively with management to solve those problems.
    So, problems in the workplace--if we can identify them 
early, find, and fix--you heard Dr. David Michaels mention, 
earlier--that's a culture that we need to instill in all 
workplaces across the United States. We need to find and fix.
    There's joint accountability, just as you were talking 
about. There's accountability, on the part of workers, to work 
with management, but also accountability on the part of 
management to work together with the employees to 
constructively collaborate to solve problems.
    The first principle of public health is, intervening early 
reduces the severity of a problem. Particularly when we look at 
permissible exposure limits, health hazards, the airborne 
standards. Those are 40 years old. What we need to do is to 
change those, because they're obsolete. Early intervention 
reduces severity. That's what we need to do in the workplaces 
across this country. Intervene early to protect workers.
    Senator Enzi. To followup on that a little bit, Do you 
believe that the rank-and-file OSHA employees, who are out 
working every day to do inspections, support VPP?
    Dr. Brandt. I really don't know that many OSHA inspectors, 
so I really can't comment. I would state that anything that can 
reduce the workload in a meaningful way for any government 
agency, and produces positive results, would be hard to reject.
    Ms. Heflin. Senator Enzi, I work with----
    Senator Enzi. Yes.
    Ms. Heflin. [continuing]. A lot of OSHA people in my 
region--through phone conversations, I meet them at 
conferences, I work with them on other panels. I believe that 
they really do believe in the VPP, but I believe that it's our 
role, as VPP companies, to continue the education, because it 
brings other sites in, it educates our OSHA folks, what we can 
do for them. And I really, really do believe that the more they 
learn, the more they will support the program.
    Senator Enzi. Thank you.
    I have more questions for all of you. I'll submit those in 
writing, and would appreciate an answer.
    This has been very helpful. I know we've kept you around a 
long time.
    The Chairman. Yes. It is getting late. I know we have to 
go, but I did want to ask Ms. Seminario just one thing.
    In your testimony, you discussed the need to strengthen 
Section 11(c) of the OSH Act and increase whistleblower 
protections. That has come up in our discussions today, on both 
the previous MSHA panel and on this OSHA panel, too.
    Just tell me a little bit about how you feel about that, 
about the whistleblower protections. Do we need a unified 
whistleblower protection policy through everything?
    Ms. Seminario. The whistleblower provisions of the OSH Act 
are 40 years old. They were some of the first ones that were 
enacted. I think there have been two dozen statutes enacted 
since that time that have some kind of protections related to 
the environment, safety and health, and other statutes that 
provide protections for people who speak up, either in the 
workplace or to the government.
    When you compare those statutes, what you see is that the 
original OSH Act is the weakest of all of them, because it was 
never changed. So, we've learned, over the years, as to what 
needs to be done.
    For example, under the OSH Act, there's a very short 
statute of limitations. It's 30 days. If you don't get your 
claim filed in 30 days, you're out of luck.
    The only person who can take up the claim is the Secretary 
of Labor, and they have to do it in court. There are a lot of 
resource issues here. I mean, there are, I don't know, 1,400 
11(c) complaints that were filed with Federal OSHA; they've got 
75 whistleblower inspectors.
    The fact of the matter is, the resources haven't existed at 
the Federal Government to take up those cases. The ability for 
somebody to take up the case on their own would be a very, very 
helpful provision.
    There aren't any rights in the OSH Act for preliminary re-
instatement. Even if there's a finding that the person really 
was retaliated against, while the litigation's going forward, 
they're out of luck. What we would like to see is the OSH Act 
brought in line with the very best practice--some of which this 
committee has recently adopted and recommended, to put those 
protections in place under the basic safety and health law.
    The Chairman. Very good. Thank you.
    Senator Enzi.
    Senator Enzi. Mr. Chairman, in light of that question, I 
have a followup question for Ms. Seminario.
    Just last week, the National Labor Relations Board decided 
a case, in which a Missouri Labor Union had fined one of its 
members $2,500 for reporting a safety violation by another 
employee union member to the employer of the hydroelectric 
facility where they worked. This case involved the setting up 
of a telebelt, which is a freestanding conveyor-belt that spans 
130 feet and transfers material, such as rolled concrete and 
coarse aggregate. The employee was complying with the 
employer's safety rules by reporting the violation, and 
protecting himself and all of his coworkers.
    The union in the case is the International Union of 
Operating Engineers Local 5-13 AFL-CIO. As safety and health 
director for the AFL-CIO, did you advise the local to fine this 
member?
    Ms. Seminario. I'm not----
    Senator Enzi. What kind of message does it send to penalize 
members?
    Ms. Seminario. I have no knowledge of this case or the 
facts. I'm happy to take a look at it and respond to your 
question in writing.
    Senator Enzi. OK.
    Ms. Seminario. Unfortunately, I really don't have the 
information to respond today.
    Senator Enzi. OK. Thank you.
    The Chairman. I'd like to know, too. Respond to us on that.
    Just in closing, again, Ms. Shaw thank you very much for 
being here. I know I speak for my friend Mike, and all of us 
who are here, that we are sorry about the loss of your husband.
    Ms. Shaw. Thank you.
    The Chairman. We appreciate how much you've done to make 
sure that others don't follow the same fate. I thank you for 
your leadership in that area and for continuing to speak out 
and to advocate----
    Ms. Shaw. Thank you.
    The Chairman [continuing]. The changes that we need. Thank 
you very, very much for being here.
    Does anyone have any last thing that they need to say or 
get on the record at all?
    [No response.]
    Going once. Going twice.
    [Laughter.]
    Again, I want to thank all of the people here who brought 
the pictures of their family members. Again, a very poignant 
way of reminding all of us that there's real people behind all 
the things we're doing here. These are real people, with real 
families, with real children, with real wives and kids. It 
always just does us good to be reminded of that. I thank you 
very much for being here.
    With that, the HELP Committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Senator Byrd

    Mr. Chairman, I thank you and Senator Enzi for the 
invitation to attend this hearing. I thank you, Senator Harkin, 
for your commitment to schedule a hearing next month before the 
Senate Labor-HHS Appropriations Subcommittee.
    MSHA inspectors must have had some suspicion, after 
numerous citations and withdrawal orders for repeat offenses, 
that the management at the Upper Big Branch Mine was 
endangering the lives of its miners. As coal production 
escalated rapidly and drastically, and employment remained 
relatively constant, MSHA inspectors must have had nagging 
concerns that conventional enforcement tools like citations and 
withdrawal orders were not working. Rumors abound about mine 
company officials tampering with methane detectors, and 
cleaning up safety problems shortly before inspectors entered a 
working section. MSHA inspectors must have had some suspicion 
that when inspectors forced corrective actions in one part of 
the mine, more egregious violations might be eluding them in 
other parts.
    1. Given the disturbing safety record and the reputation of 
this particular mine, why did MSHA not do more to force 
compliance with the law? Why were dangerous mining conditions 
allowed to fester? Why did MSHA wait until after the tragedy to 
launch an inspection blitz at coal mines with a history of 
pattern violations? Why did MSHA wait until after the tragedy 
to pursue changes regarding patterns of violations? Why did 
MSHA not seek injunctive relief to force compliance with health 
and safety standards?
    2. What does MSHA do when conventional tools like citations 
and withdrawal orders prove ineffective? What unconventional 
tools can MSHA use to force compliance? What does it presently 
take to close a mine?
    3. Aside from the health and safety laws, what remedies 
exist to deal with a recalcitrant operator who has a reputation 
for flouting the law, and for putting profits ahead of safety?
    4. How many mines have records of violations similar to the 
Upper Big Branch, and a pattern of frustrating MSHA efforts to 
enforce compliance? What actions have been taken to address 
these evasive activities?
    5. Is there a culture at MSHA which tends to inhibit the 
robust enforcement of mining safety laws? What can be done to 
guard against MSHA inspectors developing relationships with 
mining companies that tend to impede tough enforcement of the 
law?
    6. Can we better empower mine inspectors? Some have 
suggested streamlining the citation process (by clarifying the 
classification of gravity and negligence), or handicapping the 
burden of proof in inspectors' favor when they defend contested 
citations and orders.
    7. Can we restore public confidence in the Mine Act's 
system of whistleblower protections, both for hazard complaints 
and for ``Part 90'' situations in which miners attempt to exert 
their right to be moved to a less dusty area of the mine?
    8. MSHA is strengthening its efforts to ensure that pre-
shift examinations uncover violations of the Mine Act. If the 
law were to require that each crew leave the mine before 
subsequent crews enter, could this provide additional time to 
conduct more robust pre-shift examinations? If an MSHA 
inspector entered the mine at the time of a shift change, so 
that the inspector could observe mine conditions exactly as 
they were at the end of the previous shift, would that help to 
insure that hazardous conditions are caught and addressed 
before a new shift began?
    9. Please provide a detailed plan and time line for the 
investigative process. What hearings will be planned? How will 
they be structured? Who will participate?
    10. According to news reports, Massey Energy officials have 
said the company had employed a full-time, two-person safety 
team at the Upper Big Branch mine. How did MSHA interact with 
this safety team?
    11. According to news reports, Massey officials have said 
that MSHA required them to change their ventilation plan, over 
the resistance of Massey engineers, and that the new 
ventilation plan inhibited fresh air from getting into the 
mine. Is there any truth to that?
    12. How could the Mine Act be amended to expand the 
universe of stakeholders that can seek injunctions or other 
relief (including ordinary citizens who may be adversely 
affected by unsafe or unhealthy mining conditions)?
    13. Please describe your views about revising 30 CFR Part 
104. How will you prevent operators from repeatedly receiving a 
notice of a potential pattern of violations, without ever 
incurring the consequences for an actual pattern of violations 
under Sec. 104(e) of the Mine Act? Does MSHA have the 
technological wherewithal to monitor for pattern violators on a 
continuous basis, and move to notify operators of a pattern the 
moment one is detected? If so, will you commit to commencing a 
system of continuous monitoring and notice?
    14. Could MSHA streamline the process for referring 
potentially criminal violations for prosecution by the 
Department of Justice? Can MSHA or the Congress make it easier 
for miners or others to initiate the referral process?
    15. According to press reports, MSHA negotiated an 
agreement with Massey Energy in 2006 to waive filing deadlines 
for contesting citations. Is there any truth to that? Were 
other operators offered similar waivers? How many times were 
deadlines waived?
    16. Why is MSHA not issuing an Emergency Temporary Standard 
to expedite its rulemaking agenda, specifically with regard to 
pattern violations?
    17. Recently, a hazard complaint at the Road Fork #51 Mine 
triggered eight 104(d)(2) withdrawal orders, in connection with 
the operation of two continuous mines on inadequate ventilation 
(i.e. two mines were ventilated using a single stream or 
``split'' of fresh air). Please discuss how MSHA evaluates 
ventilation plans on so-called ``super sections'' (in which two 
mechanized mining units are operated on a single set of 
entries) and on similar mining sections. What type of 
additional oversight does MSHA conduct to ensure ongoing 
compliance with safe ventilation practices on these sections? 
How can you strengthen your evaluation of ventilation plans, 
and associated enforcement, in this regard? If you could 
generalize, how many mine workers are ideally required to 
operate a ``super section'' in a safe fashion?

                   Prepared Statement of Senator Webb

    I would like to thank Chairman Harkin and Ranking Member 
Enzi for holding this hearing on strengthening enforcement and 
creating a culture of compliance at mines and other dangerous 
workplaces.
    It was with great sorrow that our Nation learned of the 
tragedy at the Upper Big Branch coal mine in Sago, WV, where 29 
miners lost their lives. That devastating explosion earlier 
this month reminded us all of the risks our coal miners 
undertake each day. It also reminds us of the responsibilities 
of our own office as Members of Congress. We have a continuing 
duty to establish, and insist upon, proper standards of safety 
for those who work in this industry. We must never forget that.
    I want to extend my personal condolences to the families, 
coworkers, and others who were impacted by this tragedy, and to 
express my commitment to working to help ensure it does not 
happen again.
    Coal has been, and will continue to be for the foreseeable 
future, the foundation of our Nation's energy resources. Coal's 
continued strategic and economic importance only highlights the 
need to protect those who work to extract it.
    Virginia is a coal State, ranking No. 13 in the Nation in 
coal production. In 2008, 24.7 million short tons of coal were 
produced from an estimated recoverable reserve base of 750 
million short tons.
    According to the National Mining Association, direct and 
indirect employment generated by U.S. coal mining in Virginia 
accounts for 31,660 jobs, for a combined payroll of $1.43 
billion. Coal is integral to the economic activity of southwest 
Virginia. We can--and must--do better by our miners when it 
comes to enforcing safety regulations and ensuring that 
companies don't walk away from their responsibility to their 
workers.
    It is also essential that the Mine Safety Administration 
have the proper resources to ensure the safety of the 
hardworking men and women laboring in our mines every day.
    I look forward to the analysis and recommendations of this 
committee with regard to how we at the Federal level can 
improve mine safety, and I pledge to work with my Senate 
colleagues to implement needed reforms. I believe that improved 
technology is one area we should be looking at, which is why 
last Congress I introduced legislation to improve tracking and 
communications technology for underground coal mines.
    There is more we must do, as the tragedy in West Virginia 
reminds us.
    Thank you, Mr. Chairman, for the opportunity to address the 
committee on this important issue.
    Prepared Statement of the Coalition For Workplace Safety (CWS)*
    The Coalition for Workplace Safety (CWS) is a broad coalition 
comprised of associations and employers who believe in improving 
workplace safety through cooperation, assistance, transparency, 
clarity, and accountability. The Coalition believes that workplace 
safety is everyone's concern. Improving safety can only happen when all 
parties--employers, employees, and OSHA--have a strong working 
relationship. We thank you for this opportunity to express our views on 
the Protecting America's Workers Act (PAWA), and, specifically, the 
proposed changes being discussed here today.
---------------------------------------------------------------------------
    * The CWS is comprised of associations and employers who believe in 
improving workplace safety through cooperation, assistance, 
transparency, clarity, and accountability.
---------------------------------------------------------------------------
                     workplace safety is improving
    Workplace safety has steadily improved over the last 40 years and 
BLS data shows that workplaces are safer now than they have ever been. 
Workplace fatalities have declined 23 percent since 1994. This drop 
occurred even as the workforce expanded, with the economy adding 23 
million new jobs over the same time period. Workplace injury and 
illness rates have shown a similar drop. Since 1994, the total case 
rate has declined by 50 percent and the lost days from work rate has 
declined by 44 percent. While the government's reporting system may not 
capture every workplace injury or illness, the data undeniably reveals 
the trend of declining workplace injury and illness rates.
    This decline is the product of various factors, including 
employers, employees, OSHA, insurers, safety experts and business and 
professional associations working together to increase understanding 
about safe work practices and their importance and how employers and 
employees can reduce workplace accidents. The advent of modern 
communications and the Internet have also facilitated sharing 
information and safety-related guidance.
    CWS applauds OSHA for its role in decreasing injuries, illnesses 
and fatalities, in particular its work in the last 15 years to promote 
workplace safety through outreach and education. Since its inception, 
OSHA has established standards employers must meet through its 
regulations and enforcement activities. For the first 25 years, the 
agency did not, however, focus on assisting employers and employees to 
understand OSHA standards and related safe work practices. Beginning in 
the Clinton administration, this changed and OSHA developed an array of 
approaches that focused on educating and working cooperatively with 
employers to improve workplace safety. The CWS is committed to 
supporting these approaches as they have contributed to the increase in 
workplace safety, as indicated by the BLS workplace injuries and 
illness rates.
                 pawa will not improve workplace safety
    CWS is concerned about several of the provisions in the Protecting 
America's Workers Act (S. 1580/H.R. 2067). PAWA is unnecessary and will 
not improve workplace safety. It focuses on increasing penalties and 
enforcement and does nothing to assist employers in their efforts to 
make workplaces safer. Increasing penalties on employers will only 
serve to increase litigation, drain OSHA and DOL resources and harm our 
economy and hinder job growth.
    Experience with the Mine Safety and Health Administration (MSHA) 
reinforces this point. A hearing in the Education and Labor Committee 
on February 23, revealed that as a result of the increased penalties 
from the MINER Act passed in 2006 and MSHA's regulations taking effect 
in 2007, the backlog at the review commission is now 16,000 cases worth 
$195 million, and expected to rise further as the current policy at 
MSHA is to not engaged in settlements. This backlog has impacted safety 
in the mining industry by absorbing an unprecedented amount of MSHA 
resources which would otherwise be devoted to field and other 
activities. Increasing OSHA's penalty regimes in a similar way will 
neither increase safety in the workplace nor give employers the tools 
necessary to create solutions towards workplace safety. Our concerns 
with some of the specific aspects of PAWA that are being discussed 
today are set forth below in more detail.
Abatement of Hazards Pending Contest
    The change to Title III, Abatement of Hazards Pending Contest, 
eliminates the employers' right to use the administrative appeals 
process to thoroughly investigate its obligation to abate serious 
hazards. This is a dangerous diminishment, if not outright elimination, 
of due process protections for employers. Mandating abatement before a 
review process can be completed is like asking a defendant in a court 
case to pay a fine or serve a sentence before the completion of the 
trial. Additionally, requiring abatement prior to a full investigation 
may lead to inaccurate changes being made, which can lead to 
unnecessary costs for employers. Conversely, allowing due process to 
proceed in the normal order will allow employers, especially small 
businesses, the time and resources needed to find solutions to any 
workplace safety issues. This is the best way to keep workers safe on 
the job. As a hearing in the House on March 16 revealed, OSHA already 
has the ability to shut a workplace down in as little as 1 hour when 
they determine there is an imminent hazard.
Penalty Changes
    There has been much discussion of proposing further changes to this 
legislation's criminal penalties under title III that would alter the 
mental state requirements for criminal penalties from ``willful'' to 
``knowing.'' This is a significant change to 40 years of settled law 
that will cause uncertainty among employers, employees, compliance 
officers, prosecutors and adjudicators. The uncertainty about potential 
liability would cause employers to engage in a more defensive posture 
with OSHA and on workplace safety issues. Not only will this 
inevitability result in increased litigation, but it would severely 
disrupt the cooperative approach towards workplace safety that has been 
so successful over the past 15 years.
    Furthermore, PAWA defines an employer as ``any responsible 
corporate officer'' which will create unprecedented confusion and 
disincentives to being a corporate officer. This proposed change would 
have a chilling effect on how employers dedicate staff and resources 
that maintain safety programs. These changes do nothing to give 
employers, especially small businesses, the tools to stay well-informed 
of safety concerns in the workplace. Increasing penalties and lawsuits 
does not get to the heart of the problem necessary to find solutions in 
the workplace.
    The bill would also increase civil penalties dramatically which 
will also lead to more contested cases with the associated impacts 
already noted above.
PAWA: Not the Right Approach
    This legislation goes counter to efforts commenced under the 
Clinton administration to promote cooperation between employers and 
OSHA. In order to be effective in making workplaces safer, employers 
need OSHA to be as much of a resource as it is an enforcement agency. 
However, we are troubled that many of these effective employer 
compliance assistance programs are losing funding while the agency 
focuses on expanding punitive measures like the Severe Violators 
Enforcement Program. Congress should recognize the improving trends of 
injury and illness rates and better under current programs that have 
been successful in bringing about this progress. Lawmakers should look 
to promoting effective programs that make workplaces safer rather than 
considering drastic overhauls of OSHA's approach to enforcement. To 
this end, we hope that Congress will consider codifying and protecting 
compliance programs like the VPP that have protected millions of 
American workers.
                               conclusion
    The Coalition on Workplace Safety continues to stand ready to work 
with OSHA and Congress to enhance workplace safety. However, PAWA--and 
the changes presented here--undermine efforts to promote cooperative 
engagement between employers and the agency, and will not assist 
employers in making workplaces safer. We will continue to work towards 
the goal of increasing workplace safety by working together through 
cooperation, assistance, transparency, clarity, and accountability.
                                 ______
                                 
                      Refinery Safety at a Glance
    Personnel and Process safety are cornerstones of petroleum refining 
facilities nationwide.
                            personnel safety
    The domestic refining industry continues to improve its workplace 
safety record, despite a work environment that often complex process 
equipment, hazardous materials, and handling materials under high 
pressures and temperatures. This strong industry safety record is 
reflected by declines in the industry's rate of injury and illnesses--a 
rate significantly lower than the total recordable incident rate for 
the entire manufacturing industry.
                             process safety
    The petroleum manufacturing industry is regulated by the 
Occupational Safety and Health Administration (OSHA) Process Safety 
Management Standard (PSM) for Highly Hazardous Chemicals (29 CFR 
1910.119) and the U.S. Environmental Protection Agency (EPA) Chemical 
Accident Prevention Program (40 CFR 68) as well as several other OSHA 
General Industry standards. Individual sites are required by law to 
conduct a PSM audit of all 14 facility safety elements \1\ every 3 
years and to resubmit their Risk Management Plans (RMP) every 5 years.
---------------------------------------------------------------------------
    \1\ Fourteen elements include Employee Participation, Process 
Safety Information (PSI), Process Safety Analysis (PSA), Operating 
Procedures, Training, Contractors, Pre-Start-up Safety Review (PSSR), 
Mechanical Integrity, Hot Work Permits, Management of Change (MOC), 
Incident Investigation, Emergency Planning and Response, Compliance 
Audits, Trade Secrets.
---------------------------------------------------------------------------
    NPRA and the American Petroleum Institute (API) \2\ continue to 
work jointly on several new industry recommended practices that will 
enhance workplace safety. In 2010, the industry released several 
standards, including: Management of Hazards Associated with Location of 
Process Plant Permanent Buildings, Fatigue Risk Management Systems for 
the Refining and Petrochemical Industries, and Process Safety 
Performance Indicators for the Refining and Petrochemical Industries. 
NPRA and API worked closely with the Chemical Safety Board on the 
creation of these recommended practices.
---------------------------------------------------------------------------
    \2\ API is an American National Standards Institute (ANSI) 
accredited standards developing organization. They operate with 
approved standards development procedures and undergo regular audits of 
their process.
---------------------------------------------------------------------------
    There are approximately 30 safety and fire protection standards and 
recommended practices maintained by API that refining companies 
voluntarily comply with in order to promote a safe working environment. 
In addition to refining industry standards, companies also comply with 
standards established by the American National Standards Institute 
(ANSI), American Society of Mechanical Engineers (ASME), the 
Instrumentation, Systems, and Automation Society (ISA), and National 
Fire Protection Association (NFPA). Many of these standards are 
considered Recognized and Generally Available Good Engineering 
Practices (RAGAGEP) and are enforced by OSHA's General Duty Clause.
                              quick facts
    According to the 2008 Bureau of Labor Statistics (BLS),\3\ the 
total recordable incident rate for the manufacturing sector as a whole 
is 5.0 job-related injuries and illnesses per 100 full-time employees. 
The 2008 BLS total recordable incident rate for petroleum refining 
facilities is 1.1 incidents per 100 full-time employees.
---------------------------------------------------------------------------
    \3\ BLS rates are based on a sample rather than a census of the 
entire population and do not include contractor injury & illnesses 
numbers in their calculations.
---------------------------------------------------------------------------
    Based on the 2008 NPRA Occupational Injury & Illness Report that 
surveys 90 percent of NPRA member refineries, the total recordable 
incident rate was 0.83 for company employees, 0.53 for contractors that 
work at those refineries, and 0.67 for both company employees and 
contractors per 100 full-time employees.
    In 2009, 60 percent of NPRA member refineries received the NPRA 
Merit Award for having a Total Recordable Incident Rate of 1.0 or less 
in 2008.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Prepared Statement of The National Stone, Sand & Gravel Association
    On behalf of the National Stone, Sand and Gravel Association 
(NSSGA), we offer this testimony for the hearing on ``Putting Safety 
First: Strengthening Enforcement and Creating a Culture of Compliance 
at Mines and Other Dangerous Workplaces.''
    By way of background, the U.S. Geological Survey reports that NSSGA 
is the largest mining association by product volume in the world and 
represents the crushed stone, sand and gravel--or construction 
aggregates--industries that constitute by far the largest segment of 
the mining industry in the United States. Our member companies produce 
more than 90 percent of the crushed stone and 75 percent of the sand 
and gravel consumed annually in the United States. There are more than 
10,000 construction aggregates operations nationwide. Almost every 
congressional district is home to a crushed stone, sand or gravel 
operation. Proximity to market is critical due to high transportation 
costs, so 70 percent of our Nation's counties include an aggregates 
operation. Of particular relevance to this hearing is the fact that 70 
percent of NSSGA members are considered small businesses.
    Unlike coal mines, underground stone mines produce material that is 
non-combustible and non-flammable. No combustible gas, such as methane 
is present, and no underground stone mine is categorized as liberating 
methane or containing a combustible ore. MSHA-approved 
(``permissible'') equipment is not required in underground stone mines 
because mine fires or explosions cannot occur due to electrical 
equipment contacting an explosive gas, since explosive gas is not 
present. Mining methods create cavernous chambers for access by large 
equipment and to accommodate emergency equipment used by non-mine 
emergency services. More stable mineral formations result in stable 
mine roofs, minimizing the need for additional roof supports and 
emergency escape is easier due to the large mine openings. Because of 
the large open spaces and mining methods, mechanical mine ventilation 
generally is not required since natural ventilation provides an 
atmosphere in which people can work.
    NSSGA and its member companies go to great lengths to provide safe 
and healthful environments for aggregates workers. Implicit in this 
effort is the industry's commitment to comply with all MSHA regulations 
and standards tied to worker safety and health.
    The first priority of the aggregates industry is, and continues to 
be, the safety and health of its workers. The safety record of the 
aggregates industry has improved due to the heightened level of effort 
invested by the industry to sustain an improved performance. Since 
2000, the rate of injury-illness incidence for aggregates operators has 
been reduced by 41 percent, to 2.46. While fatalities in the aggregates 
industry continue to decline--seven in 2009--we believe even one 
fatality is too many and we are working tirelessly to take that number 
to zero.
    The improvement in the aggregates industry safety record is 
attributable to several factors. The first is that aggregate companies 
understand that to stay competitive in today's business environment, 
they must provide a safe and healthful workplace or they will not be 
able to attract the best workforce possible. Companies know that to 
remain competitive in America today, you must first care about your 
people.
    NSSGA developed and agreed to a set of safety principles to assist 
member companies in their efforts to instill safety consciousness as a 
top priority in their individual organizations as well as to the 
industry as a whole. In addition, a safety pledge was developed in 2008 
incorporating the safety guiding principles. More than 70 percent of 
the NSSGA member company facilities are managed by CEOs who signed the 
NSSGA Safety Pledge, thus signifying the importance of safety and a 
commitment toward ensuring the safety and health of all their 
employees.
    NSSGA was one of the first organizations that formalized an 
alliance with MSHA. While some argue that these alliances have aligned 
the agency too closely with the regulated community, we would argue the 
opposite. In 2002, NSSGA and MSHA set forth a cooperative agreement to 
develop programs and tools for the improvement of safety and health in 
the aggregates industry. The reduced incidence rates that resulted 
speak for themselves. Through these alliances, individual working 
miners have gained access to more educational materials from their 
companies, and MSHA has been able to enhance its mission of protecting 
worker safety and health.
    Another collaborative effort resulted in the MSHA Part 46 
``Training and Retraining of Miners'' regulation in 2000. This 
effective regulation ensures that every miner knows and understands how 
to perform their job safely by covering the important safety and health 
information prior to starting work and annually thereafter. This 
regulation was developed collaboratively, with input from both labor 
and industry groups, guaranteeing support of the rule by all involved 
stakeholders and assuring their commitment to the ultimate goal of 
injury reduction. The Coalition for Effective Miner Training included 
many industry groups working in a joint industry/labor arrangement in 
conjunction with MSHA to develop an effective standard for the 
aggregates industry, and the part 46 miner training resulted from the 
group's combined efforts.
    Another example of an effective collaboration between MSHA and 
NSSGA is a cooperative workplace-based training program of 3-day-long 
workshops on monitoring for both noise and dust, and diesel particulate 
matter. Agency and association leadership developed and signed an 
agreement, and the training workshop program launched on December 1, 
1997. These workshops have been given every year since 1997, and 
training specialists from the Mine Safety Academy have educated miners 
in dust and noise issues. The joint venture aimed at reducing hearing 
loss and silicosis through a program of recognition, evaluation and 
control of workplace hazards has won two awards from Innovations in 
American Government.
    Because there's been much discussion of the Federal Mine Safety and 
Health Review Commission since the coal mining tragedy of April 5, we 
offer a number of suggestions for alleviating the case backlog at the 
Commission.
    NSSGA is concerned about the delay in producers' ability to obtain 
from the Federal Mine Safety and Health Review Commission (FMSHRC) a 
timely hearing on alleged violations.
    We applaud Assistant Secretary of Labor for Mine Safety & Health 
Joseph Main for his goal of improving training for inspectors on behalf 
of enforcement consistency. We understand that a number of contests 
from aggregates companies are due to strong disagreement on the basis 
of the severity finding on a citation. Inspectors need to do a proper 
job of evaluating and clearly identifying what is ``Significant and 
Substantial'' (S&S). NSSGA hears repeated expressions of concern that 
S&S is being over-written.
    Also, we would like to see the agency communicate more proactively 
with stakeholders about agency changes in enforcement interpretations. 
Citations should not serve as first notice to stakeholders that there 
has been a change in the agency's interpretation of what is required to 
be in compliance. Rather, the agency should notify all stakeholders of 
such changes in interpretation before enforcement begins so that 
companies and their workforces are afforded adequate information needed 
for compliance.
    Additionally, we recommend that MSHA re-institute the process of 
conferencing citations before assessment of penalties. Before it was 
changed, pre-penalty conferencing enabled operators to close out on 
inspections satisfactorily without having to add to the Commission's 
docket.
    Further, we encourage the agency to consider changes in civil 
penalty procedures hastily put in place contemporaneously with 
enactment of the MINER Act. A major concern, for example, is the 
regulatory provision specifying how an operator's history should be 
brought into calculation of civil penalties. While we understand the 
importance of scrutiny of every company's history in reviewing 
violations for assessment, the present procedure of assigning maximum 
penalty points for a 15-month average of 2.1 violations per inspection 
day is having a disparate and unfair impact on many companies. Take a 
small company, for example, that in its last two inspections of 1 day 
each in the previous 15 months, has a total of five violations for a 
total of 2 days of inspections. This will cause 25 points to be added 
to this small company's civil penalty calculation, which can translate 
into very big fines. Twenty-five points will convert a $555 penalty to 
$4,099 and it will convert a $4,099 penalty to $30,288. There are small 
companies that have been assessed penalties as high as $200,000 in a 
single inspection.
    It is understandable that companies will not want a single 
underserved violation in their history and that they will do everything 
in their power to contest questionable citations.
    We are committed to the notion that operators have every right and 
need to contest citations with which they do not agree. We hasten to 
add that history is by no means the sole issue. Every undeserved 
subjective finding by an inspector will add underserved points to the 
company's penalty calculations. These are unaudited findings and they 
represent big money liability. Only by seeking review before the 
Federal Mine Safety and Health Review Commission--the agency with 
exclusive authority to assess penalties--can an operator have a voice 
in the process. Indeed, even MSHA now is telling operators that if they 
want a conference regarding a citation, they will have to contest the 
citation formally before the Commission. We have mentioned only some of 
the concerns of operators that are prompting contests, but the system 
as a whole is deemed unfair and the only avenue that operators have to 
bring issues to light is through the contest process. NSSGA would be 
pleased to work with MSHA to address this and possible solutions.
    Also, we offer the attached article, which was published in Mine 
Safety and Health News on Jan. 25, 2010. It was authored by an NSSGA 
Manufacturers and Services Division member and discusses the background 
of the backlog, relevant legal issues and includes suggestions for 
addressing the backlog. For your information, the author participated 
in an Energy and Mineral Law Foundation Special Institute (March 23 and 
24) in Washington, DC, with attorneys from the Solicitor of Labor's 
office and Judges from the Federal Mine Safety and Health Review 
Commission. The goal of the panel was to constructively address civil 
penalty case backlog issues and how they might be resolved for 
everyone's benefit.
    Additionally, we cannot mention--either our commitment to or 
achievements in--worker safety and health without citing the importance 
of effective compliance assistance by MSHA. In that vein, we 
respectfully urge that the Administration change course on plans to 
shut down the Small Mine Office (SMO): we believe the provision of 
quality compliance assistance geared to smaller operations adds 
significantly to the safety and health of our workforce.
    SMO compliance assistance has helped operators: (1) provide safer 
and more healthful work environments; (2) boost compliance; and (3) 
experience smoother inspections because the operation and workforce 
were better prepared. Moreover, we're pleased that SMO works on a key 
priority of yours, the development of a written safety and health plan 
for every operator. As illustrated at www.msha.gov, SMO's compliance 
assistance correlates to more rapid reductions in injury/illness 
incidence rates than for those of the overall aggregates industry.
    NSSGA and our State aggregate association partners find SMO's work 
to be critically important to continuing improvements in safety and 
health among aggregates industry workers.
    This guidance was considered most useful when it could be provided 
without ``coordination'' or immediate follow-on by an inspector. 
Operators are concerned that, if compliance assistance visits are 
followed immediately by enforcement action, inspections will target the 
very issues focused upon in the compliance assistance visit before 
adequate time allows for resolution of deficiencies. Presently, it is 
our understanding that SMO provides compliance assistance without 
specific knowledge of when an inspection may be forthcoming. This 
allows the development of greater trust that the assistance is offered 
for the safety and health benefit of the workers, and with the purpose 
of enhancing compliance.
    SMO's work has enabled companies to more readily comply with 
pertinent regulations and standards, the enforcement of which has 
dramatically increased since enactment of the MINER Act. This is 
critical. Given that many NSSGA member companies--replete with strong 
staffs involved in safety and health training and compliance--are 
themselves facing increased compliance pressures. One can only imagine 
the burdens weighing on small operators.
    NSSGA is in receipt of more than 100 stories of SMO personnel 
having delivered effective compliance assistance. Outlined below are 
just a few testimonials from around the country:

     Small mines officer helped us quickly bring our operations 
up to speed on safety.
     Assistance on training plans made for a thorough 
understanding; for instance, he delivered easy-to-understand 
explanations.
     Officer conducted a thorough examination via a courtesy 
walk-through on the range of things inspectors would be checking for.
     Because of our visit with the SMO representative, we had a 
zero citation inspection.
     The SMO representative provided guidance on updating 
records and training materials.
     The instruction was so helpful that our contractors have 
called to express thanks.
     One inspector took the trouble to make a second visit to 
our facility because the first day's provision of information had been 
so overwhelming.
     Officer helped us organize all of our training 
information.
     Officer made my safety training work much more efficient.
     Officer streamlined our paperwork organization so that 
there will be fewer headaches in the future.

    These testimonials describe the qualities of SMO representatives, 
reflecting favorably on the agency and its mission:

     Very professional, and business-like and added a measure 
of personal concern.
     Helped us realize that our full compliance was possible.
     Helped us solve our safety problems on numerous occasions.
     After our meeting, I feel really good about spreading the 
good news.
     I feel that you could not put a monetary value on the 
small mine program because it does what it is designed for, to save 
lives, reduce accidents, and help improve operator awareness.
     I can feel comfortable calling this person, instead of an 
inspector; he was genuinely interested in helping.
     Materials he provided are my new best friends.
     Don't know what small miners would do without you.
     [on courtesy walk-through] It's not easy being picky and 
polite at the same time, but the SMO representative did.

    In closing, we respectfully urge continuation of SMO's critical 
work to boost compliance in smaller operations that are unlikely 
otherwise have the staff complement sufficient to oversee in-house 
compliance assistance with the same level of expertise. Most 
importantly, SMO's continued existence will help us continue our 9 
consecutive years of improvements in the aggregates industry's injury-
illness incidence rates.
    Thank you for the opportunity to submit these views.
        Response to Questions of Senator Harkin by Bruce Watzman
    Question 1. I agree with your statement that a safety culture 
starts from the top down and that it is recognized across all 
organizations, both mine and non-mine workplaces. Unfortunately, there 
are a minority of operators that wantonly disregard our health and 
safety laws, using a myriad of tactics to avoid paying penalties and 
otherwise complying with the law.
    Focusing on operators that show a record of egregious health and 
safety violations, does your organization agree that a strong 
enforcement structure is necessary to hold companies accountable for 
repeatedly placing their employees at risk of injury or death?
    Answer 1. We believe that strong, vigorous enforcement of the law 
and regulations is integral to ensuring that workers, in mining and 
non-mining workplaces alike, are provided a safe and healthful 
workplace. As noted in our April 27, 2010 testimony, ``mine safety is 
the operator's obligation and must be their highest priority but both 
operators and MSHA have a shared responsibility to ensure a safe 
workplace.'' The Mine Act and its escalating enforcement scheme are 
designed to hold accountable operators that place their employees at 
risk of injury or death.

    Question 2. Should companies be penalized for chronically 
accumulating serious job safety violations that can potentially cause 
serious injury and death?
    Answer 2. Under the Mine Act and its escalating enforcement scheme 
companies are penalized for accumulating serious job safety violation.

    Question 3. Would you and your organization support changes in the 
law in order to discourage unscrupulous operators from pursing 
frivolous appeals solely for the purpose of delay? If not, why not?
    Answer 3. The underlying premise of the question is the belief that 
some operators' are employing dilatory tactics to prevent MSHA from 
being able to initiate heightened enforcement actions based upon final 
resolution of safety violations. We do not agree with this premise. 
However, it must be noted that MSHA, even in the absence of final 
resolution of challenged citations, has the ability to escalate 
enforcement when they believe it is warranted.
    As discussed during the April 27 hearing, MSHA has never used the 
injunctive relief authority provided by the Congress in Section 108 of 
the Federal Mine Safety and Health Act and has sparingly used the 
imminent danger authority provided for in section 107. We support 
legislation to provide additional appropriations to the Federal Mine 
Safety and Health Review Commission and the Department of Labor, Office 
of the Solicitor, to eliminate the backlog of cases pending 
adjudication as continued delay serves neither miners or mine 
operators.
 Response by David Michaels, PhD, MPH to Questions of Senator Harkin, 
            Senator Enzi, Senator Burr, and Senator Isakson
                      questions of senator harkin
    Question 1. You mention that most Federal crimes under current 
environmental and regulatory laws use the term ``knowingly,'' rather 
than ``willfully,'' and recommend amending the OSH Act to change its 
criminal provision to be consistent with other statutes.
    Please explain for us the distinction between the ``knowing'' 
standard and ``willful'' standard and the significance this change 
would have to the agency's enforcement efforts.
    Answer 1. Most Federal statutes, including most environmental 
statutes, contain a ``knowing'' mens rea standard rather than a 
``willful'' standard.
    DOL supports the efforts to amend the criminal provisions of the 
OSH Act by changing the mens rea standard from ``willful'' to 
``knowing.'' Doing so would bring those provisions into the mainstream 
of Federal criminal laws.
    Congress has consistently used the ``knowing'' standard in criminal 
provisions in public welfare statutes and in other contexts where, as 
in the workplace, activities are highly regulated. It is reasonable to 
assume that anyone involved in such areas is aware of that high degree 
of regulation. Indeed, in such contexts, courts have recognized a 
presumption of knowledge of the law. Cf. United States v. Int'l 
Minerals & Chem. Corp., 402 U.S. 558 (1971) (explaining that when 
dangerous or harmful devices or products, or obnoxious waste materials, 
are involved, ``the probability of regulation is so great that anyone 
who is aware that he is in possession of them or dealing with them must 
be presumed to be aware of the regulation''). The justification for 
this presumption has been described as follows: ``[t]o admit the excuse 
at all would be to encourage ignorance where the lawmaker has 
determined to make men know and obey.'' Holmes, The Common Law (Howe, 
ed. 1963). Use of the knowing standard in OSHA's criminal penalty 
provision would be consistent with this rationale, as employers can 
hardly be surprised to learn of the existence of standards, rules, and 
orders pertaining to workplace safety, and the knowing standard places 
an appropriate and fair burden on them to ``know and obey'' these 
standards, rules, and orders.

    Question 2a. Compared to our environmental laws, both civil and 
criminal OSHA penalties under current law seem very low.
    Because OSHA penalties are only misdemeanors, in what circumstances 
would the Department of Justice be able to prosecute cases involving a 
willful violation that led to a workplace fatality?
    Answer 2a. Under PAWA, criminal OSHA violations would be deemed 
felonies rather than misdemeanors. The Department of Justice has 
testified that it is more likely to prosecute felonies than 
misdemeanors. In addition, potential criminal liability is expanded to 
any responsible corporate officer or director. Both the Clean Water Act 
(CWA) and the Clean Air Act (CAA) already expressly include 
``responsible corporate officer'' in their definitions of persons to 
whom the statutes apply. 33 U.S.C. 1319(c)(6) (CWA); 42 U.S.C. 
7413(c)(6) (CAA). The term is often defined as a person who is in a 
position to stop the conduct and has knowledge of the facts, but does 
nothing to stop the conduct. Similar liability would be appropriate 
under the OSH Act.

    Question 2b. In addition to increasing penalty amounts, what are 
other ways to ensure that companies whose corporate management 
knowingly ignores health and safety laws throughout multiple facilities 
face appropriate consequences for these actions?
    Answer 2b. In April, OSHA announced the new Severe Violators 
Enforcement Program (SVEP), a critical tool that will help the Agency 
improve its ability to deter safety and health violations, particularly 
among recalcitrant employers who knowingly and repeatedly put their 
employees in harms way. The SVEP, which replaces OSHA's existing 
Enhanced Enforcement Program (EEP), is intended to focus increased 
enforcement attention and resources on employers who have demonstrated 
indifference to their obligations under the Occupational Safety and 
Health (OSH) Act. In particular, the SVEP targets the most egregious 
and persistent violators who have willful, repeated, or failure-to-
abate violations in one or more of the following circumstances: (1) a 
fatality or catastrophe situation; (2) in industry operations or 
processes that expose employees to the most severe occupational hazards 
and those identified as ``High-Emphasis Hazards; '' (3) exposing 
employees to hazards related to the potential release of a highly 
hazardous chemical; or (4) all egregious enforcement actions.
    Under OSHA's definition, employers that behave in a way that 
indicates they may be indifferent to their legal obligations and 
thereby endanger their workers would become an SVEP case. The SVEP 
actions, consisting of more inspections, public notification, and other 
measures, are intended to increase attention on the correction of the 
hazards or recordkeeping deficiencies found in these workplaces and, 
where appropriate, in other worksites of the same employer where 
similar hazards and deficiencies are present.
    The changes the Protecting America's Workers Act (PAWA) would make 
to the OSH Act's criminal provisions are another way OSHA could better 
ensure companies whose corporate management knowingly ignores health 
and safety laws throughout multiple facilities face appropriate 
consequences for these actions. PAWA would change the burden of proof 
from ``willfully'' to ``knowingly.'' Section 311 states that any 
employer who ``knowingly'' violates any standard, rule, or order and 
that violation results in the death of an employee is subject to a fine 
and not more than 10 years in prison. Currently, the maximum period of 
incarceration upon conviction of a violation that costs a worker's life 
is 6 months in prison, making these crimes a misdemeanor. Nothing 
focuses attention more than the threat of going to prison and we 
believe this change would better hold corporate feet to the fire when 
it comes to safety and health.
    In addition, potential criminal liability is expanded to any 
responsible corporate officer or director, which addresses Federal 
court rulings that limited liability for OSHA violations to 
corporations and high-level corporate officials. This section is aimed 
at the small minority of corporate officials who have behaved 
irresponsibly, resulting in the death or maiming of their employees. 
OSHA currently has no penalties adequate to deter such conduct.
                       questions of senator enzi
    Question 1. How many inspections does the average OSHA inspector 
conduct per year? How many of those are programmed inspections, and how 
many are in response to an accident or complaint?
    Answer 1. In fiscal year 2009, OSHA inspectors conducted an average 
of 39.6 inspections. Of those, approximately 28.9 inspections were 
programmed, one inspection was the result of a fatality or catastrophe, 
and 7.94 were in response to a complaint.

    Question 2. Despite your assurances, I have received no information 
about the alternative funding mechanisms OSHA is supposed to be 
considering for Voluntary Protection Programs (VPP). Please describe 
the system you are proposing in detail.
    Answer 2. The Agency has been approached by Congress about 
exploring a fee-based system for operating VPP. We are currently 
exploring the feasibility and benefit of this type of system and its 
overall impact on the Agency's effectiveness in achieving its mission 
to assure the safety and health of our Nation's workers. As part of 
that process, we have reviewed a 2008 study performed by the Government 
Accountability Office (GAO), Federal User Fee: A Design Guide, and 
found that user fees, if well designed, can promote economic efficiency 
and be a viable option to deal with scarce budgetary resources. Our 
goal in exploring this possibility is to ensure that VPP and other 
Agency programs will function efficiently as a part of OSHA's overall 
approach to worker safety and health.

    Question 3. Who have you worked with in developing this new VPP 
funding proposal?
    Answer 3. We were approached by the House Education and Labor 
Committee to explore a fee-based system for running the VPP. Some work 
will need to be done to determine if it makes sense in this context. In 
doing so, OSHA is committed to working with the Voluntary Protection 
Program Participants' Association (VPPPA) and other program 
stakeholders, to whom we have reached out, to identify the best way to 
structure a fee-based proposal or any other viable options for 
obtaining non-Federal funding to support this program and the Agency's 
overall mission.

    Question 4. Who has been briefed on the new VPP funding proposal 
and been given the opportunity to provide feedback?
    Answer 4. Preliminary information has been provided to Congressman 
George Miller on the VPP fee-based proposal.

    Question 5. Will the new VPP funding proposal require new 
legislative authority?
    Answer 5. If we were to pursue this strategy, it would require 
legislative authority.

    Question 6. How long would it take to put this new VPP funding 
system in place?
    Answer 6. If the Administration chooses to pursue this option, it 
would take some time to establish a system for administering it, after 
the necessary authorizing legislation is enacted.

    Question 7. The 2011 Budget Request also proposed shifting 35 FTEs 
from ``support of VPP and Alliance programs to enforcement activity.'' 
Has this shift already occurred? If not, when does OSHA plan to make 
this shift?
    Answer 7. The requested shift of resources is part of the agency's 
fiscal year 2011 budget request and will not be effectuated until it is 
authorized by Congress in the appropriations process.

    Question 8. Does this shift require congressional approval?
    Answer 8. Congress sets the total appropriation for OSHA and 
designates specific dollar amounts for each of the agency's budget 
activities. OSHA then determines how many FTE can be supported with the 
funding provided by Congress and if a requested program increase or 
decrease was provided within the budget activity threshold approved by 
Congress. The President's request for fiscal year 2011 reflects the 
requested shift of 35 FTEs.

    Question 9. How many new VPP site applications have been processed 
since your confirmation on December 3, 2009?
    Answer 9. As of May 13, 2010, there have been 76 new VPP 
applications processed and approved since Dr. Michaels' confirmation on 
December 3, 2009.

    Question 10. On 4/19/10, the National Labor Relations Board issued 
a decision in International Union of Operating Engineers, Local 513, 
AFL-CIO and Ozark Constructors, LLC, A Fred Weber-ASI Joint Venture, 
Case 14-CB-10424. In this case a Missouri labor union fined one of its 
members for reporting a safety violation by another employee union 
member to the employer at the hydroelectric facility where they worked. 
The employee was complying with the employer's safety rules by 
reporting the violation, and protecting himself and all of his 
coworkers. Yet the union fined him $2,500 for ``gross disloyalty or 
conduct unbecoming to a member.'' NLRB ordered the union to rescind the 
fine and post a notice that stated, in part,

          ``WE WILL NOT impose a fine on any employee because he or she 
        reports another employee-member to his or her employer for 
        safety rule infractions, at a time when doing so is part of the 
        work duties of the employee who makes the report.''

    What kind of message does it send to penalize workers for taking 
steps to make their workplaces safer?
    Answer 10. It sends an unconscionable message. Under the OSH Act, a 
worker has the right to raise concerns about workplace safety or 
health, whether or not doing so is part of that employee's work duties.

    Question 11. Should a labor union be able to prevent employees from 
reporting hazardous conduct or prevent an employer from disciplining an 
employee who fails to follow safety rules?
    Answer 11. As previously noted, OSHA does not accept restrictions 
on a worker's right to participate in the protected activity of 
engaging in the process of ensuring workplace safety and health. This 
right to raise safety concerns is not conditioned on the worker being 
required to do so by official duty.

    Question 12. At the hearing, Dr. Brandt, the incoming President of 
the American Industrial Hygienists Association, stated his unequivocal 
support for workplace alcohol and drug testing programs. Do you support 
workplace alcohol and drug testing programs?
    Answer 12. As you know Secretary Solis' vision for the Department 
of Labor is ``Good Jobs for Everyone.'' Good jobs are safe jobs. This 
is why the Department has launched a ``plan, prevent, protect'' 
strategy in our spring 2010 regulatory agenda to expand and strengthen 
worker protections. This program is aimed at efforts to require each 
employer to implement an Injury and Illness Prevention Program, one 
that not only establishes a plan to identify and correct all workplace 
hazards, but also fosters a culture to prevent such hazards from 
occurring in the first place.
    There are many different approaches to workplace safety, some of 
which include drug and alcohol testing, although in our experience we 
have found that drug and alcohol testing programs often have the effect 
of discouraging worker participation in the health and safety program, 
or from reporting injuries and illnesses.
    We have found that the best way to prevent workplace injuries and 
illnesses is through this ``plan-prevent-protect'' strategy where 
employers and employees work together to prioritize safety and health, 
address all hazards that may be present, and build a culture that 
involves workers and their employers.
                       questions of senator burr
    Question 1. It has been reported that OSHA plans to remove funds 
currently devoted to cooperative compliance programs and devote them to 
increased enforcement, with a specific focus on nonunion employers. Can 
you confirm whether it is true that funds are being reduced and/or 
diverted away from these cooperative programs?
    Answer 1. OSHA's fiscal year 2011 Congressional Budget 
Justification, which was delivered to Congress on February 1, 2010, 
redirects 35 full-time equivalent (FTE) positions to the Federal 
Enforcement budget activity from Federal Compliance Assistance, 
specifically the Voluntary Protection Program (VPP). The redirection of 
resources is not being proposed with a specific focus on nonunion 
employers. The budget proposes refocusing OSHA's compliance assistance 
work by freeing up the time devoted by compliance safety and health 
officers (CSHOs) to cooperative programs to allow for increased 
inspections and the detection of hazards in the most dangerous 
workplaces. OSHA continues to strongly support VPP, but feels that 
Federal funds need to be focused on our top priority, which is 
enforcement of the law for those companies who continue to put workers 
at risk. OSHA is actively exploring non-Federal funding options such as 
a fee-based system in order to continue and strengthen VPP.

    Question 2. Second, on what statistical basis does OSHA rely in 
diverting funds from effective cooperative programs such as VPP and 
STAR and devoting them to increased enforcement activities specifically 
against nonunion employers?
    Answer 2. OSHA must make hard choices in using our limited 
resources where they are most needed. As a result, OSHA is reducing 
Federal resources spent on companies that have a proven record of 
understanding the importance of worker safety and health to invest 
resources in companies that are not doing a good job protecting their 
employees. The redirection of resources is not being proposed with a 
specific focus on nonunion employers.

    Question 3. What criteria has OSHA used in making this decision 
that cooperative programs are ineffective and that nonunion employers 
are less safe than unionized employers?
    Answer 3. One of this Administration's top priorities is effective 
compliance assistance. Cooperative programs at union and nonunion 
employers play an important role in OSHA's efforts to provide a voice 
for workers and to ensure safe and healthy workplaces and worker 
rights. The Voluntary Protection Programs (VPP) make a valuable 
contribution to workplace safety, including many with workplace safety 
and health programs that serve as models for the rest of American 
companies.
                      questions of senator isakson
    Question 1. Does the Administration support section 309 of PAWA--
Objections to Modification of Citations--which allows ``affected 
employees'' (who are undefined) to interfere with settlement 
negotiations and citation modifications if they allege that these 
``fail to effectuate the purposes of the act?'' I fear the effect of 
this section will be to seriously impede OSHA's ability to negotiate 
settlements thus tying up OSHA resources unnecessarily and delaying the 
implementation of settlement agreements that benefit workers.
    Answer 1. I understand that the committee has redrafted this 
section in a way that addresses your concerns. The revised draft would 
establish the right of a victim (injured employee or family member) to 
meet with OSHA, to receive copies of the citation at no cost, to be 
informed of any notice of contest, and to appear and make a statement 
during settlement negotiations before an agreement is made to withdraw 
or modify a citation. If a case is not settled, the victim will have a 
right to make a statement to the Commission, and to have that statement 
receive due consideration in any Commission decision. No one is 
affected more by a workplace tragedy than workers and their families, 
and we fully recognize and appreciate their desire to be more involved 
in the remedial process.

    Question 2. How does the Administration expect an already 
overloaded review system to cope with the combination of many more 
whistleblower complaints (the result of extending the deadline from 30 
days to 180) and strict deadlines for responses (120 days)?
    Answer 2. Protecting workers who suffer retaliation for their 
protected safety and health activity will continue to be both a 
priority and a challenge for the Department of Labor. We believe that 
the current, outmoded filing deadlines unfairly impact these workers 
and should be revised.

    Question 3. What data does the Administration have that supports 
the changes to 11(c) in PAWA (Title II)?
    Answer 3. The Department of Labor supports PAWA's modernization of 
OSHA's anti-retaliation provisions because it provides a more equitable 
process for complainants, more adequately protects whistle blowers, and 
conforms the outdated whistleblower provisions of the OSH Act with 
other, more modern Federal whistleblower laws. While OSHA does not 
track the specific number of cases dismissed for failure to file within 
the current, short 30-day deadline, it is clear from our experience 
administering 11(c) that this happens all too frequently. We strongly 
believe 11(c) complainants should be entitled to the same period for 
filing retaliation claims as employees who file complaints under the 
other whistleblower laws. The nine most recently enacted or amended 
statutes have 180-day filing deadlines; two have 90-day periods; and 
one has 60 days. Only the OSH Act and the equally outdated 
environmental statutes have 30-day filing deadlines. We also support 
harmonizing other aspects of whistleblower law, including burdens of 
proof, private rights of action, and de novo review, and believe that 
the whistleblower provisions of PAWA achieve this harmonization in a 
way that will provide workers with more adequate protections.

    Question 4. Does the Administration believe that the approximately 
75 percent of claims that are dismissed are meritorious?
    Answer 4. In the past 5\1/2\ years, OSHA has dismissed 62 percent 
of the 11(c) complaints it investigated. Of the 1.5 percent forwarded 
by OSHA to the Office of the Solicitor for litigation, approximately 
three quarters of 11(c) complaints were declined for a variety of 
reasons, only some of which relate to the underlying merits of 
complainant's claim. Some are settled, some are unsuitable for 
litigation because crucial witnesses may be unavailable, still others 
because of the extremely demanding burdens of proof under the OSH Act's 
whistleblower provision.

    Question 5. How does PAWA help a small business looking for answers 
to the safety questions improve its workplace safety? Why would 
increasing penalties make a difference to small employers who will very 
likely never see an OSHA inspection unless they have an accident?
    Answer 5. PAWA would enable OSHA to continue to support OSHA 
outreach initiatives for small businesses through compliance 
assistance, cooperative programs, and training. In addition, no changes 
are being proposed to services provided to small employers by OSHA On-
site Consultation programs. OSHA will continue to develop and enhance 
its Web site and outreach initiatives to support the safety and health 
programs of all employers, including small businesses.
    While many employers want to do the right thing, others will only 
comply with OSHA rules if there are strong incentives to do so. It is 
unfair to employers who are doing the right thing, especially small 
employers, to allow unscrupulous employers to gain an unfair 
competitive advantage by cutting corners on safety and health 
investments.
    Because OSHA can only visit a limited number of workplaces each 
year, we need to strengthen the OSH Act in order to effectively 
leverage our resources and encourage voluntary compliance by employers. 
Increased penalties will make employers of all sizes who ignore hazards 
to their workers' safety and health think again. Unscrupulous employers 
often consider it more cost-effective to pay the minimal OSHA penalty 
and continue to operate an unsafe workplace than to correct the 
underlying health and safety problem. OSHA penalties must be increased 
to provide a real incentive for employers not to accept injuries and 
worker deaths as a cost of doing business.

    Question 6. On two separate occasions, a bipartisan group of 
Senators has written to the Labor Department asking for a safety 
standard specific to tree care operations. The Bush administration 
responded and pledged to work toward enacting regulations. The Obama 
administration has now reversed course, despite the fact that in 2008, 
the industry's fatality rate was 62.0, nearly three times that of 
mining and over five times that of construction. Please explain this 
decision.
    Answer 6. OSHA recognizes that hazardous conditions caused by tree 
care pose a serious threat to America's workers. However, after careful 
deliberation the Agency has determined that the major issues the 
proposed rule was intended to correct are already addressed by existing 
standards. OSHA issued a directive related to tree care and tree 
removal operations on August 21, 2008 (CPL 02-01-045). This directive 
provides guidance on existing OSHA general industry standards that 
apply to tree care and tree removal operations. Examples of current 
general industry standards discussed in the directive, include Personal 
Protective Equipment (29 CFR 1910 Subpart I), Material Handling and 
Storage (29 CFR 1910.176), Hand and Portable Powered Tools and Other 
Hand Held Equipment (29 CFR 1910 Subpart P), Machinery and Machine 
Guarding (29 CFR 1910 Subpart O), First Aid Providers and First Aid 
Kits (29 CFR 1910.151), Fire Extinguishers (29 CFR 1910.157), 
Occupational Noise Exposure (29 CFR 1910.95), and Flammable and 
Combustible Liquids (29 CFR 1910 Subpart H). The directive also 
provides criteria that will assist in determining whether a particular 
removal of trees is the type of operation covered by OSHA's logging 
operations standard (29 CFR 1910.266) and the applicability of current 
OSHA electrical standards.
    OSHA is faced with many difficult safety and health decisions, 
including decisions about which standards to pursue. In determining the 
best course of action to correct a hazard, OSHA must take a variety of 
issues into account including resource limitations and other 
commitments. The Agency's new regulatory agenda, which was issued on 
April 26, 2010, is intended to reflect an accurate production schedule 
with realistic timetables for completing rules. As a result, OSHA made 
a decision to withdraw tree care, and several other rulemakings from 
the regulatory agenda rather than push the next action dates out for 
these standards. OSHA will continue to evaluate tree care as a 
candidate for further rulemaking.
        Response to Questions of Senator Enzi by Michael Brandt
    Question 1. Just last week the National Labor Relations Board 
decided a case in which a Missouri labor union had fined one of its 
members $2,500 for reporting a safety violation by another employee 
union member to the employer at the hydroelectric facility where they 
worked. (International Union of Operating Engineers, Local 513, AFL-CIO 
and Ozark Constructors, LLC, A Fred Weber-ASI Joint Venture, Case 14-
CB-10424, 4/19/10) The employee was complying with the employer's 
safety rules by reporting the violation, and protecting himself and all 
of his coworkers. What kind of message does it send to penalize workers 
for taking steps to make their workplaces safer?
    Answer 1. While there is no simple answer to your question, I will 
summarize my opinion and then provide a more detailed explanation of 
it.
    This specific case (355 NLRB No. 25) involves an employee reporting 
an ``unsafe condition'' in the workplace to the site safety officer. 
Every organization has conditions of employment that each employee 
agrees to obey when they are hired. These workplace rules are typically 
designed to codify organizational norms and set behavioral expectations 
for employees. Also, the application of workplace policies is 
oftentimes subject to interpretation of the specific circumstances 
surrounding any violation of policy.
    My reading of the Decision indicates that while there is a subtext 
of discord within the union local, the union chose to penalize the 
worker for reporting the unsafe condition in the workplace. The 
employee had an obligation to act to report an observed safety hazard 
to protect himself and his coworkers. The union officials chose to 
place fidelity to union rules over safety, which is akin to an often 
used argument that ``management places production schedules over 
safety'' when an injury occurs. Both approaches fail to consider the 
risks to workers resulting from uncorrected, unsafe or unhealthy 
conditions in the workplace. Doing so could result in a serious injury 
and a work stoppage. The union's decision to penalize this worker for 
reporting an observed safety hazard sends the message that will very 
likely result in silencing other union members who may observe a safety 
hazard and result in an increased risk in the workplace.
    As I stated in my testimony to the HELP Committee, each employee 
has a reasonable expectation to return home healthy and safe. I also 
stated that a precondition for a safe workplace is shared 
responsibility and accountability between labor and management. I will 
briefly elaborate. A central principle of occupational health and 
safety is to identify potential hazards and intervene early to 
eliminate the hazard and reduce the risk. This requires that various 
defenses be implemented to:

         Create an understanding and awareness of the hazards 
        associated with a given work activity through anticipation and 
        recognition of potential hazards associated with a work 
        activity;
         Give clear guidance on how to work safely through work 
        instructions;
         Eliminate the hazard at the design stage or by 
        implementing controls to mitigate the hazard such as 
        engineering solutions, personal protective equipment, or 
        administrative measures (warning signs, work procedures);
         Evaluate the effectiveness of the control measures in 
        eliminating or reducing the risk associated with the hazard as 
        low as reasonably achievable.

    Question 2. Should a labor union be able to prevent employees from 
reporting hazardous conduct or prevent an employer from disciplining an 
employee who fails to follow safety rules?
    Answer 2. Given the topic of the recent HELP Committee hearing on 
unsafe workplaces, it does not make any sense for a union to prevent 
workers from reporting hazardous conduct or unsafe conditions. Each 
employee has a reasonable expectation that they will return home safe 
at the end of their work day. Programs such as VPP and other management 
systems promote both management and employee participation and 
involvement in a workplace safety and health program. Workplace rules 
that prevent reporting, and thereby prevent correcting, unsafe 
conditions are not likely to be found in organizations with good safety 
records. Such workplace rules violate the basic public health and 
safety principle that intervening early in an unsafe or unhealthy 
workplace will reduce the severity of the outcome or eliminate the 
observed risk to workers. Finally, organizations with a just and 
positive safety culture encourage workers to ``find and fix'' workplace 
hazards as a routine behavior.

    Question 3. I was glad to hear of your support of Voluntary 
Protection Programs (VPP). What do you think is responsible for the 
considerable growth in new VPP members over the last decade?
    Answer 3. VPP has been successful because contemporary high 
performing and financially successful organizations recognize that 
investing in health and safety is good for both the business and for 
the employees. I describe four examples of how health and safety has 
been successfully integrated into business; see my response to Senator 
Harkin's question below. These examples, while not necessarily from VPP 
sites, reflect the basic components of VPP: management and employee 
involvement and collaboration toward common goals, work process 
analysis using common quality management analytic techniques, hazard 
elimination and mitigation with positive business financial and 
productivity impacts, and workplace risk reduction.
    Health and safety leaders from professional societies such as the 
AIHA have been promoting a systems approach to health and safety 
management over the past decade. While there are a number of different 
management systems being promoted globally each shares these common 
features:

         management leadership and involvement to lead by 
        example;
         employee participation in work planning, hazard 
        identification and control, and the safe execution of work;
         workplace and work activity analysis to identify 
        health and safety hazards;
         control measure implementation to mitigate or 
        eliminate identified hazards; and measuring the effectiveness 
        of the control measures to reduce or eliminate the identified 
        hazards.

    These steps are complimentary and supportive of other workplace 
continuous improvement and productivity improvement initiatives that 
have been implemented in commercial business, government, and industry 
in response to the globalization of markets and the subsequent economic 
competition.

    Question 4. How does VPP build the culture of safety in workplaces?
    Answer 4. In my experience as a labor trades worker, practicing 
industrial hygienist, operations manager, and executive, I have found 
that operational excellence is derived from a culture of trust and 
cooperation. Management provides the leadership and the resources to 
support safety and employees plan and perform their work by being 
knowledgeable about the potential hazards and take action to eliminate 
or mitigate those hazards. employers with good safety records encourage 
their employees to ``stop work'' in the event that an unsafe condition 
is observed and take action to correct the condition and eliminate the 
hazard. Such organizations routinely perform their work safely, 
securely, and with high quality because they have established a 
cultural expectation of operational excellence. A common thread in such 
organizations is a culture of continuous improvement in which work 
processes are routinely improved and optimized. By comparison, VPP 
provides a framework for building cooperative relationships between 
labor and management to improve the health and safety performance of an 
organization. VPP and quality management tools and techniques are 
complimentary and assist organizations to achieve two common goals of 
any business enterprise. The first goal is to perform high quality 
work, which means that the workplace will be free of health and safety 
hazards or identified hazards are controlled. The second goal is to 
execute work to produce high quality products and services that are 
valued by customers.

    Question 5. Do you support the Administration's request to 
appropriate no funds and no staff to VPP in fiscal year 2011?
    Answer 5. While I understand OSHA's priority of increasing 
enforcement, I do not support moving the $3M of funding of a program 
that is designed to create a positive safety culture in which labor and 
management collaborate to identify and eliminate health and safety 
hazards.
                                 ______
                                 
             United Mine Workers of America (UMWA),
                                   Triangle, VA 22172-1779,
                                                       May 7, 2010.
Hon. Tom Harkin, Chairman,
Senate HELP Committee,
731 Hart Senate Office Building,
Washington, DC 20510.
    Dear Senator Harkin: This is a followup to some of the issues and 
concerns raised during the Senate HELP Committee's April 27, 2010 
hearing on chronic enforcement problems that jeopardize workers' health 
and safety. We would like to supplement the record with this additional 
information to supplement our written statement and comments made 
during the hearing.
    Many troubling issues have come to light since the Upper Big Branch 
mine disaster, one of which has to do with accident reporting. Massey 
repeatedly touts its relatively low ``non-fatal lost time'' injury 
statistic, and claims that demonstrates its operations are safer than 
many comparably-sized competitors. This is wrong. Especially since the 
Upper Big Branch disaster, many Massey employees have spoken about the 
significant pressure the Company puts on its injured workers to return 
to work after suffering work-related injuries, even when the employees 
cannot return to their normal jobs. Instead, the Company expects its 
employees to return to the mine, where the operator permits its injured 
employees to perform ``light duty'' tasks. This practice means that 
Massey's lost-time data is misleading, even fraudulent, insofar as the 
data suggest that Massey employees are not experiencing many of the 
work-related injuries they actually have suffered. This is troublesome 
for many reasons: when an injured worker fails to fill out an injury 
report, MSHA does not learn about it and a potentially dangerous 
condition--one that might injure other workers--escapes its scrutiny; 
also, hurt workers don't have the opportunity to heal properly, but are 
pressured to return to productive work as soon as possible.
    It is also worth noting that Massey's CEO, Don Blankenship is paid 
substantial performance bonuses based on the (apparent) reductions in 
Massey's lost time accidents! While he is collecting huge sums based on 
misleading data, his employees are coerced into returning to work 
despite being hurt on the job: for 2008, Mr. Blankenship was credited 
with a 13.9 percent reduction in work lost to non-fatal injuries. Yet, 
if Massey employees are simply paid to stay in the bathhouse when they 
are hurt, the reported data is meaningless (and Blankenship's bonus is 
erroneously inflated).
    In addition to needed reforms contained in the S-Miner Act, we 
suggest there are many procedural changes needed that could serve to 
improve miners' health and safety. While MSHA can certainly take action 
itself in order to improve miners' health and safety, we believe that 
legislation is needed to make a number of these changes.
    We urge the following improvements be effected:

    1. Improve Pattern of Violation regulations to permit the Assistant 
Secretary to act to identify and impose a pattern of violations 
regardless of whether violations are under appeal.
    2. Fines should be placed in escrow throughout any challenge, until 
there is a final order. If an operator is delinquent in paying final 
penalties, its operations should be suspended, but with miners 
suffering no loss of pay.
    3. The Agency should be granted subpoena power for routine 
investigations, and all accident investigations.
    4. Accident investigations should include the families of any 
families killed from the accident under investigation; families of 
miners killed should be allowed to designate a miners' representative 
for purposes of the accident investigation.
    5. MSHA's accident investigations should routinely include an 
inquiry into MSHA's own conduct, and the investigation team should 
include independent parties who can analyze MSHA's role, if any.
    6. MSHA should maintain information about the safety performance of 
contractors operating on mine properties and reveal the conduct vis-a-
vis the mine's operator. When data show that operators tolerate 
substandard safety performance among their contractors, MSHA should 
take action against both the contractor and the operator.
    7. Improve whistle-blower protections and enhance penalties for 
discrimination against miners who complain about health and safety 
conditions. Make it a criminal penalty where prosecution can lead to 
loss of mining permit and jail time.
    8. MSHA should have greater authority to close all or part of a 
mine when conditions warrant. Give MSHA the authority to pull mining 
permits when operators become repeat violators and chronically fail to 
comply.
    9. Penalties for employer violations should be increased to 
felonies, and Company principals should not be allowed to escape 
prosecution by hiding behind a corporate structure.
    10. MSHA should adjust how it evaluates its inspectors (so that 
they are not judged by the percentage of citations upheld, which serves 
to dissuade them from issuing citations).
    11. Require the mine superintendent to sign all underground and 
surface examination reports that are required to be recorded in 
writing.
    12. Expand the rights of designated miners' representatives, such 
that they will have the right to participate in conferences and 
accident investigations with no loss of pay.
    The following substantive improvements are also needed to better 
protect miners:

     Require continuous monitoring of seals where seals of less 
than 120 PSI are used.
     Increase rock dusting/incombustible content in intake 
entries to 80 percent per NIOSH recommendation.
     Improve flame resistant conveyor belts.
     Prohibit the use of belt air to ventilate active working 
places.
     Pre-shift review of mine conditions--establish a 
communication program at each operation to ensure that each person 
entering the operation is made aware at the start of that person's 
shift of the current conditions of the mine in general and of that 
person's specific worksite in particular.
     Install atmospheric monitoring systems in all underground 
areas where miners normally work and travel that provide real-time 
information regarding carbon monoxide levels, and that can, to the 
maximum extent possible, withstand explosions and fires.
     Each miner working alone for even part of a shift must be 
equipped with a multi-gas detector that measures current levels of 
methane, oxygen, and carbon monoxide.
     Require the use of roof screen in belt entries, travel 
roads, and designated intake and return escape ways.
     Improve scrutiny of barrier reduction or pillar extraction 
plans where miners are working at depths of more than 1,500 feet and in 
mines with a history of mountain bumps.
     Establish a program to randomly remove and have tested by 
NIOSH field samples of each model of self-rescue device used in an 
underground coal mine in order to ensure that the self-rescue devices 
in coal mine inventories are working in accordance with the approval 
criteria for such devices. This should be a mandatory program unlike 
the voluntary system used today.
     Require examiners to sign and date to confirm examinations 
have been made of sealed areas when exams are required more often than 
the current weekly exams.
     Update all PELs and establish a mechanism to periodically 
update them if recommended exposures change.
     Increase the strength of psi rating currently required for 
ventilation controls.
     Require mine superintendents to be certified foreman/mine 
foreman in the State they are working.
     Require a minimum of four (4) entries to be examined and 
maintained travelable in all bleeder return entries.
     Require two (2) unobstructed intake escape ways for miners 
to have access in case of an emergency.
     Eliminate approvals of push/pull ventilation systems.
     Eliminate approvals of wraparound bleeder systems.
     Require all mines classified as gassy to remove methane 
prior to mining.
     Require machine mounted methane monitors to be calibrated 
so that they automatically shut down the machine at one percent (1 
percent) methane. The monitors will also be designed to shut down if 
they become bridged out or tampered with.

    Finally, we wish to alert you to a problem with the facility at 
Lake Lynn, which has been shut down for some time due to structural 
damage of the roof that occurred while blast-testing seals to meet the 
criteria of the MINER Act. This facility is a great resource to miners 
for testing new technologies, as well as a great training facility for 
mine rescue team members. Currently, the industry is forced to test 
products at the mine site. We recently almost lost a Jim Walters 
operation in Alabama to a mine fire while doing a test for a mine 
sealant. It could have resulted in loss of lives and a mine shutdown. 
It would be a huge help to miners across this country if the Senate 
could allocate the funds needed to reopen Lake Lynn.
            Sincerely yours,
                                          Cecil E. Roberts.

    [Whereupon, at 5:39 p.m., the hearing was adjourned.]