New enforcement tools for MSHA, greater use of existing enforcement
tools, and eliminating ways for mine operators to "game the system"
were among the options discussed at a hearing this afternoon before
the full Senate Health, Labor, Education and Pensions Committee.
The first Congressional panel to examine mine safety and health issues
since the Upper Big Branch explosion took 29 lives on April 5 did not
focus on the cause of the explosion.
Titled "Safety First: Strengthening Enforcement and Creating a Culture
of Compliance in Mines and Other Dangerous Workplaces," it dealt with
enforcement in general, though Upper Big Branch figured repeatedly as
an example.
Committee Chairman Sen. Tom Harkin (D-Iowa) led the session, which
began with two panels focusing on MSHA and finished with two more
addressing OSHA.
MSHA assistant secretary Joe Main spoke first, as a panel of one,
followed by a panel of four: UMWA president Cecil Roberts; underground
coal miner Jeffrey Harris; Wes Addington of the Appalachian Citizens'
Law Center; and NMA vice president Bruce Watzman.
The emotions of veteran Senators and witnesses showed in shaking
voices on several occasions as they spoke of the human impact of the
Big Branch tragedy and other mine accidents. The frustration of the
Senators at another major disaster just 4 years after the 2006 MINER
Act was clear.
"As the son of a coal miner, I feel these losses very deeply, on a
very personal level," Harkin said in his opening statement. "...While
there is very little comfort we can offer during this difficult time,
we can promise [the families of the Upper Big Branch miners] that
their loved ones will not have died in vain."
Sen. Johnny Isakson (R- Ga.), standing in at the start for ranking
member Michael Enzi (R-Wyo.), spoke of the personal impact of meeting
miners' families after the Sago disaster. He noted the frequent
presence of MSHA at the Upper Big Branch Mine, including just before
the explosion.
"We've given a lot of authority already and the use of that authority
is critical," Isakson said.
Sen. Rockefeller - not a member of the committee -- took part in the
hearing as a guest. Rep. Nick Rahall sat in the audience.
"Secretary Solis is committed to changing the 'catch me if you can'
approach everywhere it exists." testified Main He spoke of projects on
the agency's latest regulatory agenda, which he said was released
yesterday. (The agenda did not yet appear on the MSHA website, but a
Labor Department announcement said that MSHA plans to revise the
Pattern of Violations rule and the rule on preshift examinations and
will ask for suggestions for addressing injury and illness prevention
through comprehensive safety and health management programs.)
In addition, Main pledged that MSHA would begin to make use of a
provision in the Mine Act -- never before used - that allows MSHA to
close an unsafe mine by obtaining an injunction. The provision may
benefit from legislative rewording, he indicated.
Main repeatedly referred to the Pattern of Violations system as
"broken." He also testified that the category of "significant and
substantial" has become narrowed through various judicial decisions
over a period of years, so that the number of violations classified as
S&S has fallen from about 80% of the total in 1980 to a little over
30% today.
Roberts spoke of the young miner at Upper Big Branch who had left a
note for his family to let them know in case he died, that he loved
them. "This is the kind of note men used to write when they were going
to... war," Roberts said, his voice breaking. "...Not when they get
their lunch buckets and go to work here in America."
"It is time to hold CEOs and corporate Boards of Directors
accountable," Roberts' testimony stated.
Jeffrey Harris - now a UMWA miner at Patriot Coal Co.'s Harris No 1
Mine -- recalled his prior employment Upper Big Branch: "They would
take air readings until they got the right one," he stated. "When an
inspector would show up on he property, they would shut the section
down...I worked there until I couldn't take it any more. My wife was
worried to death."
Miners at Upper Big Branch were afraid to make safety complaints out
of fear for their jobs, Harris said, unlike miners in his present
workplace.
Addington, who primarily represents miners in discrimination
complaints, testified that many miners are intimidated to complain. He
said that the law's provisions for a representative of miners to take
part in inspections are "shockingly underutilized," with - for example
- a registered miners' representative of at only four our of 249 mines
in MSHA.
Watzman pointed to a list of enforcement powers already possessed by
MSHA. "They need to be used when conditions warrant rather than
broadly supplemented," Watzman testified. He also pointed to efforts
by the NMA to change safety culture and improve the industry's overall
safety record.
"Ninety-five percent of the industry doesn't have a problem like this
[chronic and repeated violations], Roberts said in the course of
questions. "Five percent don't care what law you pass...and we have
got to come to grips and fix it."
Sen. Al Franken (D- Minn.) pressed Watzman: "It sounds like...
Massey...has a reputation. Why does the National Mining Association
tolerate that?"
"I'm not sure there's much value in ostracizing any individual or
organization, " Watzman responded. Massey Energy is a member of the
NMA.