TABLE OF CONTENTS *

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

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

STATEMENT OF VERNON R. GOMEZ, A RETIRED ADMINISTRATION OFFICIAL, METAL AND NONMETAL MINE SAFETY AND HEALTH ADMINISTRATION *

STATEMENT OF BARNEY DREW, MANAGER OF EMPLOYEE RELATIONS AND SAFETY, LAFARGE CORPORATION, SOUTHFIELD, MICHIGAN *

STATEMENTS OF ROBERT SHANKS, VICE PRESIDENT OF OPERATIONS, ARCH COAL, INC., ST. LOUIS, MISSOURI, AND JOHN CORRELL, DIRECTOR OF SAFETY FOR CLEVELAND-CLIFFS, INCORPORATED, TESTIFYING ON BEHALF OF THE NATIONAL MINING ASSOCIATION *

STATEMENT OF KIM SNYDER, PRESIDENT OF EASTERN INDUSTRIES, CENTER VALLEY, PENNSYLVANIA *

STATEMENT OF WILLIAM MILES, DIRECTOR OF LOSS CONTROL, NEWMONT GOLD CO., CARLIN, NEVADA *

STATEMENT OF FREDERICK L. McGRATH, JR., PRESIDENT, UNITED STEELWORKERS OF AMERICA AMALGAMATED, LOCAL NUMBER 4, BARRE, VERMONT *

STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR OF OCCUPATIONAL HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA, WASHINGTON, D.C. *

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

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

APPENDIX C -- WRITTEN STATEMENT OF VERNON R. GOMEZ, A RETIRED ADMINISTRATION OFFICIAL, METAL AND NONMETAL MINE SAFETY AND HEALTH ADMINISTRATION *

APPENDIX D -- WRITTEN STATEMENT OF BARNEY DREW, MANAGER OF EMPLOYEE RELATIONS AND SAFETY, LAFARGE CORPORATION, SOUTHFIELD, MICHIGAN *

APPENDIX E -- WRITTEN STATEMENT OF ROBERT SHANKS, VICE PRESIDENT OF OPERATIONS, ARCH COAL, INC., ST. LOUIS, MISSOURI, AND JOHN CORRELL, DIRECTOR OF SAFETY FOR CLEVELAND-CLIFFS, INCORPORATED, TESTIFYING ON BEHALF OF THE NATIONAL MINING ASSOCIATION *

APPENDIX F -- WRITTEN STATEMENT OF KIM SNYDER, PRESIDENT OF EASTERN INDUSTRIES, CENTER VALLEY, PENNSYLVANIA 149

APPENDIX G -- WRITTEN STATEMENT OF WILLIAM MILES, DIRECTOR OF

LOSS CONTROL, NEWMONT GOLD CO., CARLIN, NEVADA 169

APPENDIX H -- WRITTEN STATEMENT OF FREDERICK L. McGRATH, JR., PRESIDENT, UNITED STEELWORKERS OF AMERICA AMALGAMATED, LOCAL NUMBER 4, BARRE, VERMONT 185

APPENDIX I -- WRITTEN STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR OF OCCUPATIONAL HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA, WASHINGTON, D.C. 191

APPENDIX J -- LETTER FROM CHAIRMAN BALLENGER TO MINE SAFETY AND HEALTH ADMINISTRATION AND LETTER RECEIVED IN RESPONSE, REGARDING THE "PART 48 RIDER" AND THE INDUSTRY'S PROPOSED TRAINING GUIDELINE 199

APPENDIX K -- METAL AND NONMETAL FATALITIES BY STATE 211

APPENDIX L - FATALITIES - SURFACE METAL AND NONMETAL MINES AT WHICH MSHA IS RESTRAINED FROM ENFORCING TRAINING REGULATIONS 215

APPENDIX M -- ADDITIONAL MATERIALS SUBMITTED BY BARNEY O. DREW, MANAGER, EMPLOYER RELATIONS AND SAFETY, LAFARGE CORPORATION 219

APPENDIX N -- ADDITIONAL MATERIALS SUBMITTED BY ROBERT SHANKS, VICE PRESIDENT OF OPERATIONS, ARCH COAL INC. 227

APPENDIX O -- ADDITIONAL MATERIALS SUBMITTED BY WILLIAM D. KELLEHER, VICE PRESIDENT, GOVERNMENT AFFAIRS, NATIONAL STONE ASSOCIATION [ADDITIONAL MATERIALS ON FILE WITH THE COMMITTEE ON EDUCATION AND THE WORKFORCE] 233

HEARING ON THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977

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The subcommittee met, pursuant to notice, at 1:00 p.m., in Room 2257, Rayburn House Office Building, Hon. Cass Ballenger, [chairman of the subcommittee] presiding.

Present: Representatives Ballenger, Fawell, Owens, Martinez, and Woolsey.

Staff present: Ashley Rehr, Professional Staff Member; Gary Visscher, Workforce Policy Counsel; Jason Ayeroff, Staff Assistant; Peter Rutledge, Minority Senior Legislative Associate/Labor; Maria Cuprill, Minority Legislative Associate/Labor, and Shannon McNulty, Minority Staff Assistant/Labor.

Chairman. Ballenger. [presiding] A quorum being present, the Subcommittee on Workforce Protections will come to order. The subcommittee is meeting today to hear testimony to review the Federal Mine Safety and Health Act of 1977.

Under Rule 12(b) of the committee rules, any oral opening statements at the hearing are limited to the chairman and the ranking minority member. This will allow us to hear from our witnesses sooner and to help members keep to their schedules. Therefore, if other members have statements, they may be included in the hearing record. Without objections, all member statements and witnesses' written testimony will be included in the hearing record.

I want to thank all of the witnesses for agreeing to testify today and for the time and effort that you put into your testimony. I've gone through much of the written testimony, and I appreciate how thorough and helpful it is. And that is the purpose of the hearing, to review the Federal Mine Safety and Health Act and current issues and concerns with the Act, and to review the agencies that administer it, MSHA and the Mine Safety Health Review Commission.

I also want to apologize for any inconvenience caused by our moving this hearing from this morning to this afternoon. As you know, the House was not in session this morning so that members could attend the funeral at Arlington Cemetery for one of the police officers killed last Friday. And so I thought it appropriate for us to delay the hearing.

I also appreciate everyone's flexibility with the time change and also with the fact that, due to the time change, we had to shift the hearing to this small room.

Today's hearing, as I said, is intended to be a general overview of the Federal Mine Safety and Health Act. I anticipate that there will be additional hearings of the same nature, at which we will hear from, among others, the Mine Safety and Health Administration.

I might add that I believe that these are the first such general oversight hearings on the Federal Mine Safety and Health Act by this subcommittee in over a decade. The Federal Mine Safety and Health Act, passed in 1969, was last substantially amended in 1977. There has been just one amendment to the Act since 1977, and that was a penalty increase in 1990, enacted not for safety and health but to raise revenue for the federal government.

But while the Mine Act has not been amended since 1977, the mining industry has changed dramatically. For that matter, statistically, the nature and causes of injuries and fatalities in mines have also changed dramatically since 1977. Yet, MSHA operates under the same procedures and rules that were passed in 1977.

Let me just mention three issues where it seems to me we ought to reexamine the way things were set up in 1977 to see if there might not be a better way of doing things. I have a mining quarry in my district that has worked for more than a decade without a lost work injury. That's a phenomenal safety record. Yet, MSHA spends the same amount of time inspecting that quarry as it does in other service mines in the country, every six months. To me, it really doesn't make much sense.

As with other industries, companies involved in mining have become more productive by integrating mining and processing facilities, often locating them right next to each other and making them part of one continuous process. Unfortunately, those operations have to try to please two separate agencies, MSHA and OSHA. I've had people from those companies just shake their head at the complexity of trying to sort out which agency has the jurisdiction over what and what the different rules are for each.

Frankly, it makes the federal government look stupid to have multiple agencies involved and to have everyone, the Government and the companies, trying to figure out which agency has jurisdiction over the operations.

Third, throughout the Federal Government and by both political parties, there has been an emphasis on ensuring that health and safety and environmental regulations are based on sound science, that there is a good risk assessment done, and that costs and benefits of regulations are thoroughly analyzed.

MSHA simply does not have the resources to do that kind of rule-making. This is not just my opinion. That was the judgement of former Secretary of Labor Reich. So, as a result, we will hear today that the agency appears to be trying to avoid rule making as much as possible by trying to substitute program letters and similar unofficial rule making.

I am well aware of the fact that even to raise these issues is to invite criticism and to demagogue, and, to be seen as being uncaring about miners. Especially underground coal miners, whose work I know is very hazardous and difficult. The Mine Safety and Health Act and MSHA, together with the efforts of the mine operators, the miners, and the tremendous advance in technology, have resulted in much improvement in mine safety, but we ought not to be stuck in 1977.

Again, I want to thank our witnesses for appearing today and for their very helpful and thorough testimony. I'll turn it over to the Major if you have an opening statement.

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

Mr. Owens. Thank you, Mr. Chairman, for giving me the opportunity to speak about one of the most successful federal enforcement agencies in this country, the Mine Safety and Health Administration. I am very proud of the success of this agency, the success that it's had in reducing fatalities and injuries in our Nation's mines.

The Mine Act was passed in 1969 because of the staggering number of fatal mine accidents and the epidemic of black lung disease, then present in the coal fields. It's perhaps the most effective safety and health law ever enacted. Nearly 30 years later, in 1997, an all time record low of 30 coal miners died in accidents on the job, down from the 200 to 300 annual deaths that were the norm in the late 1960's.

Despite substantial progress, however, significant problems remain. Mining remains a U.S. industry with the highest overall death rate. As a recent series of articles in the Louisville Courier Journal have clearly shown, black lung disease remains a serious problem. The very able head of MSHA, Mr. J. David McAteer, has stated, quote, ``The mere fact that black lung continues to exist and that it's diagnosed even in miners, who were first employed after the Federal Coal Mine Health and Safety Act of 1969 went into effect, is quite disappointing.''

Mr. McAteer contends, and I agree, that black lung can and should be eliminated. He has set out a detailed plan to accomplish that end, which includes public awareness, education, training, technology and enforcement. He's been very active in working with the industry, labor and the public to focus attention on this effort. I strongly support the goal, and I believe the MSHA has a reasonable and responsible strategy for achieving it.

MSHA has also taken a lead in focusing attention on and developing policies to eliminate other lung diseases, which are associated with mining, such as silicosis, though I believe that this is an area in which more must be done. In 1995 black lung and silicosis cost the industry $1.3 billion. That figure, however, as large as it is, cannot begin to measure the suffering caused by untimely illness and death.

While MSHA has succeeded in dramatically lowering the number of mine fatalities, mining continues to be the source of the highest number of occupational fatalities in more than half of the States. There were 61 work-related deaths in metal and non-metal mines in 1997, the highest number in a decade.

According to a recent USA Today article, quote, ``Accidental deaths among rock quarry workers have risen steadily over the past five years, and the prospect of new road building fueled by a huge, new highway bill is likely to make matters worse. Last year 45 workers were killed, up from 24 in 1993.''

MSHA is in the process of refocusing its efforts to address areas where fatalities have increased. Regrettably, however, the Congress is not. Since 1980, the Congress has included rider language on appropriations bills that prohibit MSHA from enforcing its safety training standards at aggregate mines and several other surface, nonmetal operations.

In 1996 and 1997, 90 percent of the surface metal and nonmetal fatalities occurred at mines where MSHA is prohibited from enforcing training. Since 1993, fatal accidents in exempt mines have increased by more than 87 percent. A representative from the National Stone Association has been quoted as characterizing the increase in deaths in aggregate mining as, quote, ``Merely a small fluctuation in an overall decline,'' end of quote.

In my view, this is clearly an instance where an inactive United States Congress is killing the American workers. Dead workers are something we consider more important than a mere fluctuation.

This Congress has demonstrated a disregard for the health and safety of miners in another regard. The Republicans in the House Appropriations Committee are seeking to cut MSHA's budget $7.8 million below President Clinton's request. The Republican's proposal impairs efforts to eliminate black lung. It denies funding to expand the program to target high incidences of accidents. It delays the introduction of safer mining equipment, and it reduces education and training assistance programs.

While the appropriations bill that has been reported by committee has virtually no chance of enactment, it nevertheless demonstrates an unconscionable disregard for the vital function that MSHA serves.

Mr. Chairman, I am glad that you have scheduled this hearing. Focusing greater attention on the vital role that MSHA plays is a useful endeavor. However, this is the first hearing we've had exclusively on MSHA since the Republicans took control of the House. I am amazed that you have not seen fit to afford the agency an opportunity to appear before this committee.

A single entity association, the National Miners Association, is represented here by two witnesses, but you are not allowing the agency that is the focus of the hearings to testify at all. If it appears to some that this subcommittee is interested in something less than the whole story, I must admit that I share that perception.

There are those who contend that because MSHA has been so successful in reducing fatalities, it no longer deserves or needs the resources it receives. Let me conclude by reading from an editorial that appeared in the Louisville Courier Journal, and I quote, ``Coal is an outlaw industry. It is now as it has always been. Coal is the closest thing to brute, unrepented, late 19th century capitalism that we have left in American life. If you don't believe that, just consider the fact that ranks of miners choke to death every year because coal operators regulate cheap. They cheat on air quality tests, which could save lives. When they do that, they cheat workers of the years they would be able to spend with families and friends but for an early death from black lung. This grotesque disease continues as a principal killer of coal miners, just as it has been for half a century.''

Mr. Chairman, I'd like to submit for the record two charts, one labeled Metal and Nonmetal Fatalities by State; and the other Fatalities, Surface Metal and Nonmetal Mines.

Chairman Ballenger. Without objection.

[The information follows:]

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

Chairman Ballenger. Excuse me. Thank you, Mr. Owens, for your opening statement. Now I would like to introduce our panel of witnesses.

Here today we have Mr. Vernon R. Gomez, a retired administrator from the metal and nonmetal Mine Safety and Health Administration; Mr. Barney O. Drew, manager of Employee Relations and Safety for Lafarge Corp.; Mr. Robert Shanks, President of Arch Western Resources; Mr. John Correll, Director of Safety for Cleveland-Cliffs, Inc.; Mr. Kim W. Snyder, President of Easter Industries, Incorporated; Dr. William Miles, Director of Safety and Health for Newmont Gold Company; Mr. Frederick L. McGrath, Jr., the President of the United Steel workers Association, Local 4; Mr. Joseph A. Main, Administrator of Occupational Health and Safety for the United Mine Workers. Thank you all for being here today. Before the witnesses begin their testimony, I'd like to remind the members that they will be allowed to ask questions of the witnesses after the complete panel is through testifying. In addition, committee rule II enforces a five-minute rule on all questions.

Gentlemen, I think that these little lights here are working, just to give you some idea of time. We aren't going to cut you off, but it's just to let you know. When the yellow one comes on, it's about four minutes gone. When the red one comes on, you've used up five minutes, and if you could keep it somewhere near that, we can get all of you in without rushing anybody, and it would give us a chance to ask some questions.

So, with that, Mr. Gomez, you may begin your testimony.

Mr. Gomez. Thank you, Mr. Chairman. I have submitted a brief resume so I will not spend any time telling you who I am. The time is too valuable. As a person who has spent my entire adult life in the mining industry at almost every level in the agency, the last 23 years as an employee of the Mine Safety and Health Administration, I feel that I have something to contribute to this ongoing quest to make this industry an accident free industry.

First, I would like to thank the chairman and the committee for the opportunity to talk to you about the metal and nonmetal mining industry and the Mine Safety and Health Administration.

Certainly we can all point to the fact that metal and nonmetal's lost time injury rates reached an all time low of 3.1 in 1997. That injury rate has been on a steady downward trend since the early 1970's. We can also look to the fact that although metal and nonmetal fatal injury incident rates for fiscal year 1997, .032, was the highest in the 1990's, that rate was still much lower than the fatal rates in the late 1970's and early 1980's. But that is not the direction that we want to go. One fatal injury, one silicosis case, one reportable injury, is one too many.

Although metal and nonmetal mines number 10,6000 to 11,100 over the years and mine employment about 230,000 has remained at about the same level over the last 20 years, MSHA metal and nonmetal staffing has steadily decreased since the early 1980's. Metal and nonmetal staffing in 1983 was 324 mine inspectors and a total employment of 591. Present numbers, and I repeat that mine numbers and mine employment numbers have not changed significantly, are 265 mine inspectors, 18 percent less than in 1983, and total employment of 436, 26 percent less than in 1983.

To address the problem at hand today, in 1994 the metal and nonmetal mining industry recorded its lowest number of fatal accidents in history. That year the industry had 40 fatal accidents, and the agency completed 98 percent of its required inspections. During that same time period, the agency took health samples at 4,176 of the almost 11,000 mines in its jurisdiction.

In 1996, as fatal numbers started to go up, the agency completed only 79.6 percent of its required inspections, 18 points lower than in 1994. And in 1997 the agency complete 84 percent of the agency's required inspections, and fatal accidents reached a 10-year high of 61. Health sampling dropped to 1,970 mines in 1997, 2006 less than in 1994.

In 1998, because of concerns over an increasing number of fatal accidents, metal and nonmetal cut back on their health sampling program. Two hundred and ninety-three mines were sampled through April of 1998, and they used all of their resources to try and reduce the fatal accidents. This is a move that had to be made because the increasing numbers of fatals had to be addressed, but it should be pointed out that the agency sampled 15,711 mines from 1993 through 1997 and found 1,399 dust overexposures. So, the need to continue sampling is still there, and sampling should be done.

To close, I would like to talk to you about what could be the most important issue in our quest to eliminate injuries in the mining industry. Of the almost 11,000 mines in the metal and nonmetal industry, the agency is prohibited from enforcing the training requirements of the 1977 Mine Act at more than 9,000 of them.

I would be the first to tell you that many of those operations do train and have very good training programs, but the fact remains that a high percentage of metal and nonmetal fatal accidents are occurring at the operations where training is not enforced. There has to be some way that we can bridge the gap that separates us on this issue.

I certainly understand the need for all of us to try and reduce costs and work as efficiently as possible, but the record and current fatal accident trends certainly indicates a need for a resource increase for metal and nonmetal.

Once again, I would like to thank the chairman and the committee for giving me this opportunity.

[The statement of Mr. Gomez follows:]

WRITTEN STATEMENT OF VERNON R. GOMEZ, A RETIRED ADMINISTRATION OFFICIAL, METAL AND NONMETAL MINE SAFETY AND HEALTH ADMINISTRATION -- SEE APPENDIX C

Chairman Ballenger. Thank you Mr. Gomez. Mr. Drew, you may now begin your testimony.

Mr. Drew. Thank you. Good afternoon, Mr. Chairman, and members of the subcommittee. I'm Barney O. Drew, Manager of Employee Relations and Safety for the Lafarge Corporation, U.S. Region, out of Southfield, Michigan. I am also chairman of the American Portland Cement Association's Occupational Safety and Health Committee.

I am pleased to have the opportunity to appear before you today to testify on behalf of the APCA, which is the trade association representing virtually all domestic cement production. APCA encourages practice initiatives and cooperation between industry, labor, and MSHA to eliminate fatalities and all injuries.

Although we believe that MSHA has accomplished a great deal since the Mine Act took effect more than 20 years ago, APCA is specifically concerned about several issues. Today we will address two key areas. One, MSHA's inconsistent track record of adherence to the Administrative Procedure Act, APA; the Mine Act; and the Small Business Regulatory Enforcement Fairness Act, SBREFA; in an application of sound science to its regulation. Additionally we want to address inconsistent enforcement of the regulations. Other issues are addressed in our written testimony, which has been submitted.

The Mine Act and APA require notice-and-comment-rulemaking for any substantive rule that has a binding effect on the agency or the entities it regulates. As the pace of MSHA's regulatory action has accelerated, so has its tendency to treat its procedural requirements lightly. I would like to discuss two examples or instances where MSHA either circumvented formal rulemaking entirely or attempted to stack the rulemaking record to avoid scientific issues.

First, MSHA recently issued a policy letter on its reporting requirements which uses definitions inconsistent with those codified in the Federal Code of Regulations 30 C.F.R. 50.2(d). In January 1998, APCA pointed this out in writing and suggested that a formal rulemaking was needed, but the agency has not responded.

Second, MSHA now has pending a final rule setting more stringent noise standards at mining operations, including cement facilities. Initially MSHA presented no data to indicate the scientific basis for the new rule. After the docket closed, MSHA supplemented the record with a NIOSH report, purporting to demonstrate hearing loss among miners. After the mining industry protested, MSHA briefly reopened the record, but APCA believes such attempts to build a record that purports a formal basis for a new rule after the close of a comment period violates the APA.

Moreover, the scientific data MSHA belatedly submitted fell far short of the peer review standard intended by Congress. Congress must require MSHA to follow the Administrative Procedure Act when crafting standards that accurately determine whether proposals are supported by sound science.

APCA also points out that MSHA's Regulatory Impact Analysis of its regulations consistently fail to truly analyze the rules' impact on small mines and cement facilities, as defined by the Small Business Administration. For purposes of the Regulatory Impact Analysis review, the Small Business Administration defines small Portland cement business size as 750 or fewer employees, and small mining entities as those with 500 or fewer employees.

Yet MSHA continues to define small mines as having fewer than 20 employees. These actions clearly violate SBREFA's requirements. MSHA also slices and dices its regulations in an attempt to mask the true significant impact of its regulations on the mining industry and its many small business entities. For example, MSHA divided its proposed air quality standard and proposed diesel particulate rule into two parts to cut the estimated economic impact and enable the agency to improperly certify that the regulations will not have a significant economic impact.

As long as MSHA takes this approach, it will be impossible for industry, Congress, and the Small Business Administration or other interested parties to realistically appraise MSHA's Regulatory Impact Analysis and validate the agency's estimates.

Finally, APCA has become increasingly aware of MSHA's failure to consistently interpret and enforce its regulations at metal and nonmetal mines. This type of action is both confusing and a violation of the due process rights of mine operators. Inconsistencies and enforcement of grounding for overhead lights has been noted by an APCA member company and several of its operations where the same condition was deemed either an S&S violation, a non-S&S violation, or no violation at all, depending on the MSHA district office.

Similar discrepancies in enforcement also occur in the occupational health area. Last year, at three different plants of a single APCA member company, MSHA conducted air samplings for dust and crystalline silica. At that company's California and Colorado locations, the alleged overexposures were categorized as ``non-S&S,'' but extensive abatement requirements were imposed. But at the company's Florida operations, no abatement action was required other than re-sampling the employee and fit-testing the single employee who was alleged overexposed to dust.

MSHA's performance-oriented standards must be enforced in a manner that puts the mine operator on notice as to what actions are mandated or prohibited. APCA urges MSHA to provide more effective training to its inspectors and to exercise appropriate management oversight so that its mandatory standards are utilized and enforced in a consistent manner from coast to coast.

Again, thank you for providing APCA with the opportunity to testify in these important issues. We'll be pleased to respond to any questions you may have and to provide any requested information for the record.

[The statement of Barney Drew follows:]

WRITTEN STATEMENT OF BARNEY DREW, MANAGER OF EMPLOYEE RELATIONS AND SAFETY, LAFARGE CORPORATION, SOUTHFIELD, MICHIGAN -- SEE APPENDIX D

Chairman Ballenger. Thank you, Mr. Drew.

Our next witness is Mr. Shanks, and we'll go right ahead.

Mr. Shanks. Mr. Chairman, good afternoon. My name is Bob Shanks. I am the Vice President of Operations for Arch Coal, Inc., of St. Louis. I am appearing both on behalf of Arch and the National Mining Association. Our company is the second largest coal producer in the United States. Our 4,800 employees will provide the energy that will supply more than 6 percent of the Nation's electricity in 1998.

Mr. Chairman, our organization is one of the safest coal companies in the Nation. In 1997, Arch's Huff Creek Mine, located in Harlan County, Kentucky, was recognized as the safest underground mine in America. I mention this accomplishment because we take safety seriously at Arch, and we are pleased to participate in this very important hearing.

I would like to begin with a premise that I hope all of the witnesses will support: the health and safety of our miners is our highest priority. Having stated this goal, it is the opinion of the members of NMA that MSHA will remain ineffective in this process if the agency continues to rely upon a statutory system and management objectives that are increasingly irrelevant to the workplace it regulates. I believe my company's experience in improving the safety performance of its mines justifies this harsh assessment.

Beginning in the early 1980s, Arch re-examined its safety record in order to provide the safest possible working conditions for our employees. These efforts developed into a four-step process. First, we had to identify the unsafe acts and unsafe conditions that were causing accidents. Second, once these problems were identified, we developed safe job procedures to eliminate unsafe acts or conditions. The third step was to communicate and implement these new processes throughout our operations. And finally, the entire effort was monitored and supported by every employee in the organization. This simple and straightforward process has allowed Arch to achieve the enviable safety record that it enjoys today.

Following the adoption of this system, we made one other fundamental change to our safety management process. We began to inspect our operations using our management and our hourly employees. These internal safety audits were very successful in eliminating unsafe acts and conditions and demonstrating management's commitment to our safety improvement efforts. They were also very useful in establishing the philosophy throughout our company that safety is everyone's responsibility. It is not the duty of a single management official, nor the union safety committeeman. Everyone who works together in a mine shares this responsibility.

In comparison to this system of active management, MSHA continues to regulate safety as it did a quarter of a century ago. It possesses what I would describe as a ``traffic cop'' mentality in which an inspector does not believe that he has performed his job unless he has left a citation at the end of an inspection. This outlook is increasingly at odds with the fact that many mines enjoy high standards of safety and infrequent injuries over many years. Given the number of inspectors that MSHA employs and the decreasing number of mines within its jurisdiction, it is clear that little effort is being made to apply its resources to those operations that do present the greatest statistical risk to miners.

In our opinion, what is required is a fundamental re-examination by MSHA of its basic focus. First, given the changing structure of the industry, a re-examination of MSHA's budget allocation decisions is necessary. For example, today MSHA allocates 36 percent of its entire inspectorate to 8 percent of the coal mines' underground operations.

Secondly, focusing its resources on those mines that have below average safety records should be an obvious priority. This could be achieved by MSHA developing a self-audit program similar to the current process utilized by OSHA for mines with exemplary programs. Third, improving miner education and training by identifying and eliminating unsafe acts, not merely issuing citations, is a proven means of achieving a safer mine. Assistant Secretary McAteer has already announced changes in this regard.

Mr. Chairman, there are several changes to the Mine Safety Act that Congress should consider. Several are discussed in our written submission, but I would like to highlight two. The first involves the legal relationship between contracts and mining companies. Currently, mining companies occupy an awkward legal position if we attempt to intervene when we identify an unsafe act being committed at our mine by a contractor's employee. I think it is immoral to disregard conduct or practices committed by another which could lead to injury, but neither should my company take action that a court could later interpret as supervision. It seems only appropriate that some kind of Good Samaritan provision should be adopted and would avoid this problem for mining companies.

Secondly, the Act must be amended to permit MSHA, in compliance with defined criteria, to issue personal citations to a miner. Under current law, MSHA may issue a personal citation only for violating a smoking material prohibition. A personal unsafe act is at the heart of almost every accident, and flagrant unsafe acts or repeated personal safety offenses should result in MSHA citations against the individual miner.

Mr. Chairman, thank you for the opportunity to testify today. I look forward to questions and the other members of the subcommittee.

Chairman Ballenger. Thank you Mr. Shanks. Mr. Correll.

Mr. Correll. Good afternoon, Mr. Chairman, and members of the subcommittee. Thank you for the opportunity to be here today on behalf of the National Mining Association. I am John Correll, Director of Safety for Cleveland-Cliffs, Inc. Cliffs is the largest producer or iron ore pellets in North America, operating five large open-pit mines in the U.S. with approximately 4,500 employees. Cliffs has a long and distinguished history of promoting mine safety.

I am here today to offer first-hand information regarding the current status and effectiveness of MSHA's enforcement program. While the Agency should receive credit for the role it has played in the dramatic improvements in mine safety and health, the time has come to re-examine the ways in which MSHA, the mining industry, and the miners can achieve better results. Therefore, the time has come to re-evaluate the utilization and the application of the abundant resources entrusted to the agency.

When my career began in 1975, the clear purpose of MSHA's activities was to develop within the mining industry, a safety culture that encouraged not only compliance with minimum standards dealing with the physical conditions of the mine, but also a strong emphasis on risk analysis, to reduce the causes of accidents even further.

Over the past few years, the Agency's posture has shifted away from the most crucial part of safety: accident prevention. While most mining companies have moved far beyond regulatory requirements, MSHA has continued on a course that measures success solely in its attempts to bring all mining companies to the same minimum standards.

Consequently, there is little, if any, incentive offered by MSHA to those mines having excellent safety programs above the minimum standards.

The resulting effect on mines doing more than is required by the minimum standards is to redirect our limited resources toward achieving compliance with form over substance. This often presents us with no choice but to curtail those creative and more tailored activities known to prevent accidents, thus impeding rather than assisting accident prevention.

MSHA does little more than enforce often irrelevant regulations and apply misdirected inspection activity, too often through intimidation. When an inspector arrives at a mine, the local safety professional's emphasis shifts toward rote compliance with housekeeping and minor maintenance activities.

Meanwhile, prevention activities that focus on such areas as training, task observation, ergonomics, health and hygiene controls, self-audits, and risk analysis are curtailed.

The repeated message is clear. If the activity isn't in MSHA's regulations, the agency has no interest in your ongoing prevention efforts. Hence, a disconnection between MSHA and accident prevention.

Our goal is to reduce our accident rates below our current level. I think the mining industry is making significant progress in attaining this goal. In recent years, I have come to recognize that, to a significant degree, this trend is occurring in spite of MSHA's activities, rather than because of them.

Any significant improvement in accident rates as a result of MSHA enforcement is unlikely, unless MSHA becomes clearly focused on accident causation, rather than finding fault. To further improve, we must have a regulatory mechanism that allows all prevention resources to be applied where they are needed most.

Mining companies that demonstrate the willingness and ability to eliminate accidents must be encouraged to do so, using modern safety management and loss control techniques.

Simply stated, MSHA's overwhelming inspection presence and reliance on ineffective regulation must be changed.

Our mines have consistently achieved excellent performance in accident prevention. Our injury and illness frequency and severity rates are consistently better than the national average.

And yet, if you were to review the MSHA citation history of those mines we manage, your first thought would be that we're not doing very well. We average between 100 and 150 citations per year at each mine; but under MSHA's enforcement scheme, please also know that we received an average 150 to 200 inspector days per year per mine, in addition to numerous other State and county inspections.

Spending 150 to 200 MSHA inspector days a year per mine at operations like ours is simply ineffective use of resources. In my opinion, those resources could be used more effectively if MSHA would put accident prevention on par with regulatory compliance. I believe that MSHA officials would support such an approach. Congress, however, must give them the proper direction to accomplish it.

We will continue our diligent efforts to identify and eliminate accident causes and to achieve 100 percent compliance with MSHA regulations. We know that those goals should not be mutually exclusive.

Further progress is dependent upon MSHA acting promptly and decisively to better utilize the resources allocated by Congress. MSHA should take a leadership role in working to encourage a safety culture in the mining industry.

Thank you very much.

[The statement of Robert Shanks and John Correll follows:]

WRITTEN STATEMENT OF ROBERT SHANKS, VICE PRESIDENT OF OPERATIONS, ARCH COAL, INC., ST. LOUIS, MISSOURI AND JOHN CORRELL, DIRECTOR OF SAFETY FOR CLEVELAND-CLIFFS, INC., CLEVELAND, OHIO, TESTIFYING ON BEHALF OF THE NATIONAL MINING ASSOCIATION -- SEE APPENDIX E

Chairman Ballenger. Thank you, Mr. Correll. Our next witness is Mr. Snyder.

Mr. Snyder. Good afternoon. My name is Kim Snyder. I am President of Eastern Industries in Center Valley, Pennsylvania. I am the Vice Chairman of the National Stone Association. With me today is Bill Walton. He is the Director of Quality, Safety, and Health for Florida Rock Industries in Jacksonville, Florida. Bill is also the Chairman of NSA's Environment, Safety, and Health Division.

I have a written statement that has been submitted for the record, which I would like to briefly summarize.

NSA and its member companies are dedicated to the safety of the men and women of the aggregates industry. Our goal is zero accidents and fatalities. We believe every miner is entitled to a safe working environment. Even a single fatality is unacceptable, and all accidents and all illnesses are preventable.

In pursuit of that goal, I would like to focus on five areas. First is consistent enforcement. MSHA frankly has problems in providing consistent enforcement among districts, between their inspectors, and from inspecting one operation to another. For example, an equipment guard that is acceptable in one district is unacceptable in another district and results in a citation.

That same guard in the same district may be acceptable to one inspector and then unacceptable to the next. The most common and frankly most frustrating example is that of a guard that is acceptable over many years of inspection, and without warning or explanation, becomes unacceptable and a citation issued.

Finally, we are frustrated with the fact that the most compliant operations are inspected with greater detail than those operations that are less compliant.

Second, we want to balance enforcement with accidents. MSHA currently expends significant resources to conduct extensive, semi-annual or quarterly inspections of safe operations, including companies that have gone millions of man-hours without a lost-time accident, instead of more properly focusing those resources on mines with poor track records of injuries or regulatory violations.

MSHA should use its resources more effectively by focusing enforcement on the problems, which are high accident and fatality operations.

Third, there needs to be a scientific basis for regulation. For many years, MSHA has promulgated standards with little or no risk assessment, consideration of the regulatory impact on the surface nonmetal mining, or whether there is a legitimate need for additional regulation. Moreover, many standards are subjective and are open to arbitrary and revisionist interpretation by individual inspectors and agency management personnel.

MSHA has also attempted to bypass the notice-and-comment rulemaking requirements of the Administrative Procedure Act by issuing Program Policy Letters, otherwise known as PPLs, that contain substantive revisions to existing regulations and using these PPLs as a part of their enforcement efforts.

NSA strongly supports independent peer review of the economic and scientific basis for proposed standards. If a proposed standard is needed to address a significant risk, then the standard should substantially reduce the identified risk, should be practical, should protect workers in a most cost-effective manner, and should be expressed in terms of objective criteria and performance desired.

The fourth area is Part 48 Training. When Congress passed the Federal Mine Safety and Health Act of 1977, it included a provision requiring all mine operators, including aggregate producers, to provide comprehensive training to new employees as well as annual refresher training to all miners. The regulations implementing this part of the law were included in Part 48 of the Code of Federal Regulations.

Recently, inaccurate press coverage that focused on the rider would have the reader believe that the aggregates industry is not subject to training. In fact, the Mine Act requires the industry to conduct training. NSA fully supports compliance with the law both for its member and nonmember firms. NSA is engaged in dialogue with MSHA, other exempted industries, and State aggregate associations across the country aimed at developing a blueprint for effective training. To that end, we have developed a draft proposal training guideline for the aggregates industry, which is included as Attachment III. We believe that a rider should remain in place until an effective regulation is developed that meets the training needs of the aggregate industry and our people. MSHA has a copy of that draft and has had it since January or February.

Fifth, is the support of training. MSHA needs to work with the industry to develop modern training tools and assist in providing training to include individualized training using modern technology, such as computers, CD ROMs, and the Internet, which by the way could assist in tracking that training.

NSA strongly supports the MSHA State grants program as an effective way to provide safety training and has continuously lobbied Congress to continue funds to support this important program.

In conclusion, Mr. Chairman, ladies and gentlemen, if I could put NSA's position on MSHA in one sentence, it would be that MSHA should be about protecting people, not just regulation. The agency needs to develop a positive public-private partnership with industry and our employees to continually improve workplace safety and health.

On December 1, 1997, NSA and MSHA signed a partnership agreement to provide training in noise and dust sampling and monitoring in our industry. We hope this type of cooperation is the wave of the future. Effective regulation needs to be a combination of real world expertise of our people, the involvement of our workers, and the cooperation of MSHA. By working together we can reach our goal of zero fatalities in our industry, but we need to be partners in safety.

Thank you for the opportunity to testify before you this afternoon. Bill and I would be happy to answer any questions that you may of us.

[The statement of Kim Snyder follows:]

WRITTEN STATEMENT OF KIM SNYDER, PRESIDENT OF EASTERN INDUSTRIES, CENTER VALLEY, PENNSYLVANIA -- SEE APPENDIX F

Chairman Ballenger. Thank you, Mr. Snyder. Now, Dr. Miles, you may begin.

Mr. Miles. Thank you, Mr. Chairman, and members of he subcommittee. Good afternoon, I am Dr. William G. Miles, Director of Loss Control for Newmont Gold Company. I am accompanied, directly behind me, by Mr. Frank Hanagarne, who is Chief of Metallurgy for Newmont. Mr. Hanagarne is a manager of one of our operating facilities. He also has been directly involved in some of the incidents that I will describe here in my testimony.

Thank you for the opportunity to discuss some of our concerns with MSHA's administration of the 1977 Federal Mine Safety and Health Act.

First, I'd like to give you some background concerning Newmont Gold. We are the largest gold producers in North America, the second-largest gold producer in the world. We employ 3,700 miners in the United States at 19 open-pit mines and 5 underground mines.

Like MSHA, the safety of our mines and our miners is our number one concern. Newmont is committed to working with MSHA toward a mutual goal of further improving mine safety and health. Yet, we believe that this spirit of cooperation has deteriorated somewhat over the past few years due to a number of unreasonable and often unannounced changes in MSHA policy that have led to unproductive and costly confrontation.

We are here today to urge you, Mr. Chairman, and your committee to bring about necessary reforms to the Mine Act that will get us out of the courtroom and back to the full-time business of protecting the American mine worker.

One example of these difficulties stems from the assignment at precious metals operations of MSHA inspectors who have little or no experience with new technology developed in recent years by the gold mining industries. These MSHA inspectors often lack even the most basic familiarity with, and training in, modern gold extraction techniques. Mining inspectors charged with enforcing regulations must have expertise in, and understanding of, the processes that they are regulating. We join with the National Mining Association in their call for developing minimum professional development standards for MSHA inspectors.

Let me now give you an example that illustrates the sort of costly and unproductive confrontation between MSHA and the mining industry that hopefully this committee should also try to address. In 1995, MSHA, without any notice or public participation, began implementing a zero tolerance policy for mercury at gold mining operations. This policy was implemented despite the fact that elemental mercury, a naturally-occurring mineral in some gold-bearing ores, is universally accepted as not posing a danger from ingestion or skin contact at the very low levels found in the processing control rooms at our facilities.

MSHA issued 104(d) citations to Newmont and commanded a special investigation in pursuit of potential civil and criminal penalties against Mr. Hanagarne and others based on the detection of trace levels of mercury in a computer room where personnel drank coffee during the course of the workday. These citations were issued even though Newmont at the time was maintaining mercury-exposure levels in our plants at well under the level permitted by MSHA regulations.

An administrative law judge held that Newmont had not created any health hazard in this situation, and that MSHA's charges of high negligence against Mr. Hanagarne were baseless. Yet after three years and nearly a million dollars in legal-defense fees, MSHA's unjustified policy change remains pending before the MSHA review commission.

In closing, I would like to commend you, Mr. Chairman, and the members of this committee for giving me and my fellow miners the opportunity to express a few of our concerns and frustrations in dealing with the 1997 Mine Act. At Newmont, we are committed to the cause of advancing worker safety, as we know you are. We ask that you help reestablish the partnership between MSHA and the mining industry that is so critical to the success of our national mine-safety program. Thank you very much.

[The statement of Mr. Miles follows:]

WRITTEN STATEMENT OF WILLIAM MILES, DIRECTOR OF LOSS CONTROL, NEWMONT GOLD CO., CARLIN, NEVADA -- SEE APPENDIX G

Chairman Ballenger. Thank you, Dr. Miles. Now, Mr. McGrath.

Mr. McGrath. Good afternoon, Mr. Chairman. My name is Frederick L. McGrath. I'm the President of United Steelworkers of America Amalgamated, Local Number 4 in Barre, Vermont. Our local has approximately 1,200 active and retired members working in numerous industries, including the mining of marble, slate, and granite.

On May 20, 1994, one of our members, Brother Basseck, who worked at Rockridge Corporation in Barre town, was killed in a mining accident when pyrodex, an explosive powder similar to powder that's used in guns, exploded in a granite quarry hole.

The company had previously used pyrodex in various locations within the quarry over the preceding year. The following year, Brother Basseck was assigned to work in one of the areas of the quarry which contained undetonated pyrodex. The company knew of the presence of this undetonated explosive powder.

When the foreman was questioned by MSHA, a Mine Safety Health Administration inspector, as to why the explosives were not removed or the area properly searched prior to sending men to work in the quarry, the foreman said, I forgot.

The MSHA investigation into the cause of Michael Basseck's death led MSHA to issue and impose fines totaling approximately $480,000. The company appealed those fines, which were subsequently reduced by MSHA.

It is my contention that the company foreman should have received better training so that he would have known better than to send a man into a quarry where explosion of undetonated powder could take place, as in fact happened.

In addition to this fatal accident, there have been numerous other serious incidents in which steelworkers were injured or were involved in accidents, which could have proven fatal, but for fate. Within the last two months, I've been involved in contract negotiations with one of the largest quarries in New Hampshire. The president of the company expressed concern not only over the high cost of providing health care to the company's workforce, but more importantly, over the skyrocketing cost of workers' compensation policies. The president of the company told me, ''the cost of health care should be down because everybody's on workers' compensation.''

After this meeting, I met with the membership at the ratification meeting, and explained the importance of working safer, not just because of the cost of workplace injuries and fatalities, but the humane realities of families suffering because of terrible injuries to workers on the job.

When our members receive the proper training over the duration of their apprenticeships, we believe that accidents, injuries, and fatalities will be significantly reduced. Since 1981, Congress has prohibited MSHA from enforcing the training requirement for workers in sand, gravel, surface stone, surface clay, shell drudging, and surface limestone mining. It is my understanding that the fatality rates in these areas of mining have increased.

It's inconceivable to me that Congress maintains this restriction on MSHA's enforcement powers when workers continue to be killed or injured as employers' workman's compensations go up. MSHA has found that during the past two years, the mining operations covered by the Congressional exemption accounted for 90 percent of the deaths in all surface, metal, and non-metal mines, and for 75 percent of deaths in all surface and underground metal and non-metal mines.

In conclusion, I would urge Congress to remove the restriction on MSHA's enforcement powers over training requirements. This restriction, which has been on the books now for 17 years, has only produced more deaths and injuries for workers and higher workers' compensation costs to employers. Let MSHA get about its jobs of protecting the men and women who work in America's mining industries. Thank you, sir.

[The statement of Mr. McGrath follows:]

WRITTEN STATEMENT OF FREDERICK L. McGRATH, JR., PRESIDENT, UNITED STEELWORKERS OF AMERICA AMALGAMATED, LOCAL NUMBER 4, BARRE, VERMONT -- SEE APPENDIX H

Chairman Ballenger. Thank you, Mr. McGrath. Our final witness is Mr. Main.

Mr. Main. I thank you very much, Mr. Chairman. I appreciate the opportunity to be here today on behalf of the nation's working miners. I would point out that the subject of the discussion is really about a piece of legislation created over 25 years ago that was aimed at ending death, injury, illness, and tragedies in coal mines. I appreciate the opportunity to be here to talk about that from the standpoint of how this Mine Act has affected the working miners.

The Act continues to really be the centerpiece of health and safety protections that miners have in this country today. I think that far too often, a lot of Americans don't realize that when it comes to coal mining, when they flick the lights on, or lay down in the comfort of their bed at nights, that that was made possible because some miners risked their health and lives to be able to produce the energy that created these things.

And I think too that many Americans don't realize how many people get ground up in the process to make that possible. Last year, as has been pointed out, 30 coal miners were killed on the job to make that possible; 5,500 more that we have record of lost time at work because of injuries they suffered on the job.

It's not only coal mining, but mining as a whole that, I think, keeps this whole country going in a way that props up the national economy. In the highway discussion earlier, I think a lot of people don't realize that if it wasn't for mining, there wouldn't even be any highways. Mining is involved from the rock quarries to the sandpits to the war mines that create the reinforcing steel that create the highways.

But I don't think as people drive along those highways, that they realize the number of miners that get ground up in the process of delivering those goods. As noted, last year, 61 miners were killed in the metal and non-metal industry, and over 5,800 more lost time at work because of injuries they suffered. And those are the ones that we do know about. Last year, it should be pointed out, that the metal and non-metal mining industry had the highest number of deaths since 1987, so we do have work there.

Mining has historically been recognized as one of the most hazardous occupations in our nation. I just read a report from the Centers for Disease Control, which is a part of the Health and Human Services Department, a study they did of occupational deaths in this country. And they concluded that between 1980 and 1994, mining had the highest death rate of any occupation in this country. And when you look at the figures that were in that report, it showed that they were far greater than the rate in agriculture, forestry, fishing, and construction by a measurable distance. And it was cited as well that mining was the highest-risk occupation in 26 states. So I think that gives a pretty good flavor of the issue that we're dealing with here when it comes to the Mine Act.

Because mining is so important to the nation, I think the health and safety of those miners who produce those products should be taken into great consideration. It requires careful planning and constant surveillance to operate a mine, and the conditions that workers are placed in have to be constantly monitored to make sure that they are safe for them to go into. The Earth contains so many hidden dangers that are released every time that you open up a mine that have to be controlled. And that's one reason it's important for MSHA to be there to monitor those. Even safe mines have mining accidents. Even mines with low accident rates or injury rates have mining accidents that hurt or kill miners.

The Mine Act has been so successful, I wonder why there is a debate about any change, and I'll point out some very compelling figures. In a 10-year period prior to the Mine act, the incident rate was at 21.2 _ that's the average rate of fatalities in the mining industry. In the first 10 years, that was cut in half, to 9.9. During the next 10-year period, which takes us through the 1980s, it was cut nearly in half again, averaging 5.4. And during the 1990s, the fatality rate continues to drop and is settling at 3.6.

I think those are very dramatic figures to understand that we've had such a successful piece of legislation, which has saved hundreds of miners' lives. And with that, the productivity of this country has soared. I think people fail to realize that while we have dramatically cut the number of mining deaths, productivity in the coal industry has likewise gone the other direction, and raised itself to new heights. We mined 1.1 billion tons of coal last year, which was a national record. Last year, we had the lowest number of mining deaths in the country. I think those are significant factors.

If it isn't broke, don't fix it is one philosophy, but I think you need to understand that the tough approach of an agency that was designed to go in and make sure that miners had a safe workplace was the key behind all of this. And in tampering with that, I think you tamper with reversing the successes of the Mine Act. And I would caution greatly against any change along those lines.

I know my time is about to expire here. I've submitted a written statement that, I think, hits a lot of key points. I'm just going to spend the last minute summarizing some of those.

We do have some key problems in the mining industry that need to be addressed. One is respirable dust, which was alluded to earlier. A recent investigative series in Kentucky, I think, highlighted some of the atrocious conditions that some miners are placed in. There are coal mine operations in this country that have an unfair advantage in the marketplace, that are cheating to the extent that it's not only ruining miners' lives, but it's also putting safer mine operators out of business. And I think it's very unfair.

And I think the whole dust issue gets down to the issue that it has become an enormous cost to society, to the taxpayers, to the families, and to state and Federal governments. I think the cost is immeasurable. There is a need to clean up that sector of the industry.

The regulatory process, from a miner's standpoint, is far different from what we have heard here today. It's so darned slow that miners wonder if regulations will be issued before they pass away or leave the mining industry.

A typical example is the diesel regulations. In 1987, the Reagan administration announced the need to issue a rule to protect miners from diesel particulate used in and around coal mines. Yet today, in 1998, we're still waiting for that rule. In 1988, whenever the announcement was made to move that rule forward, there were about 1,400-plus pieces of diesel equipment in the coal mines. Today that's doubled. So as miners have waited for an answer, they have been exposed to the health effects of the fuel exhaust.

Many miners blame the slow regulatory process that's in place and are very concerned about the actions on the Hill that further delay those. There's a need to get improvements quickly.

An irony of this whole issue is that some mine operators do decide that they're going to protect their miners and employ protective devices. Others simply don't. So the miners that work at the operations that don't are left to be subject to the illnesses of the workplace.

MSHA recently announced a grace period for the reporting of illnesses. That gave the industry an opportunity to report those that had previously not been reported, as were required by the standard. We have not had a chance to thoroughly analyze those, but there are some disturbing facts that I think are important for everybody to understand.

One is that there were over 3,000 illnesses reported during this grace period. This is disturbing because we should all know, or have a good idea, of what illnesses are affecting miners so that good planning can be undertaken by government and by industry to prevent them. That has been missing from the data and information we had at hand.

Secondly, a large number of those cases turned out to be black lung cases, and it further emphasizes the fact that there are a lot more miners in this country that are succumbing to black lung disease than any of us knew. And if you tie that with the Courier-Journal report that shows the on-going corruption in some of the mining industry; if you couple that with the criminal cases that were prosecuted from 1991 through 1996, that found over 160 companies and/or individuals guilty of criminally tampering with the dust-sampling program in mines, it makes it easy to realize that we have a real problem here that we need to address.

Mr. Chairman, I will submit for the record the rest of my testimony. I appreciate the opportunity to be here, and on behalf of the nation's miners, we would strongly urge that this committee fully recognize the achievements that have been made by the Mine Act and discourage actions that would unravel the protections and the gains we've made. Thank you very much.

[The statement of Mr. Main follows:]

WRITTEN STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR OF OCCUPATIONAL HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA, WASHINGTON, D.C. -- SEE APPENDIX I

Chairman Ballenger. Thank you, Mr. Main.

I guess I'll start the questions, and one question I'd like to just throw out. Mr. McGrath, you mentioned workmen's compensation. I've run into this same problem with OSHA and the fact that it appears to me that anybody with any intelligence could take workmen's comp records and find out where the most dangerous place is and where the least is, and could schedule along those lines. Is there a difficulty getting those records to find out where it is safe, where it is not safe?

Mr. McGrath. No, it's not difficult. My allusion to that, Mr. Chairman, is due to the fact that the workman's comp rate, in the president's own words, is so high, and because of the training period that the men are into the quarry operation itself, I think there's a direct correlation between the training period, or the lack of training, and the injuries.

I quite often find, quite frankly, in many, if not all of the mines that I cover, open pit and under ground, that even though there's an apprenticeship program of a year to two years, within a month's time, the individual is put with a person, a fellow worker, and within another month's time, he's on his own. I don't think that's adequate training. I think that's just looking for trouble. If MSHA was allowed _

Chairman Ballenger. I only have five minutes. If you all don't mind, make your answers short, because I get cut off just like you do. The point I was bringing up is if MSHA were run like a business, there would be a way to find out where the danger was and where the danger wasn't. Take the open pit mine that is in my district, where they've never had an accident in 10 years, and yet they get the same inspection that these dangerous places that you're talking about do.

Something's wrong with the operation. There ought to be a better way to operate MSHA with its limited amount of money and put the people, the inspectors, where they would do the best job.

I would like to say that I've been down in a mine. I went down in the Emerald Mine, I think was the name of it, in West Virginia, Ohio, or somewhere, and it scared the fool out of me. I said before I went down there that I knew the worst job for me in the world was working in the coal mine, and when I got through and came back up, I knew for me the worst job working in the world was in the coal mine. So, I would just like to say I've been there, and I don't particularly care to go back.

But I would like to ask about something mentioned several times in a story in the Louisville Courier-Journal. I'm not asking you, but do any of you other gentlemen have any knowledge of that story? It obviously was not one of the most positive things a far as business is concerned. I just wonder if any of you had any reaction that you'd like to deliver. Yes, sir.

Mr. Shanks. Yes, Mr. Chairman, I would share the comments of Mr. Main behind me. If there are parts of the industry that are found to be guilty of cheating, we certainly condemn that and do not condone that. I would like to point out for the subcommittee that MSHA has all of the resources at its disposal to fully investigate and prosecute those individuals involved in that activity.

I would also like to point out to the subcommittee that the dust sampling techniques and equipment that are used in our industry today are 25 to 30 years old. It is old technology, and we are working jointly with the mineworkers and with MSHA to develop new technology that will give our employees and us real-time data on their dust exposure. And we feel very strongly that improvements can be made in this area, and we would seek the subcommittee's support in this effort.

Chairman Ballenger. Let me ask you a question, just a general question. Because we've had this problem in OSHA that when a company does an internal review for safety purposes, OSHA comes in and they demand it. And when they are given the review, OSHA then uses that as a method for inspecting the place. And if they haven't repaired the danger, whatever it was, then they get triple or seven times the penalty, and so forth. Does that happen in MSHA too?

Mr. Shanks. Yes, it does. It's similar in the coal mining industry, and to throw a point on your earlier comment, collectively, the mining industry and our safety performance is very heavily documented by MSHA as far as what citations we receive, what areas of the law they cover, all of our accidents. And it would be very easy to zero in on the operations that have a higher incident of unsafe acts, higher number of accidents, higher incident of violations, and focus MSHA's resources on those areas. We would certainly support those efforts.

Chairman Ballenger. Yes, sir. Go ahead.

Mr. Correll. If I could add to what Mr. Shanks is saying. In metal/non-metal this is our experience with our safety logs, and we have a very comprehensive safety system audit. We've offered a number of times for MSHA to come in and share the information, and observe how we're approaching the control of loss. We've run into a brick wall, where they show no interest whatsoever in looking at our data or our information. That's what I meant in my comment about starting in their book. They haven't shown much interest, at least not in our district.

Chairman Ballenger. Yes, Sir.

Mr. Snyder. My experience has been that not only have we not been rewarded, we've been penalized. I became president of Eastern Industries three years ago, and when I got there, our incident rate was three times the national average. Anybody who knows me knows that I'm hell on safety and we immediately re-instituted and doubled our safety staff. We institute where every employee, not only in mining, but also in the construction and building supplies business. Every employee attends eight hours safety training.

We have over 700 employees and I make it a point of personally making an appearance at every eight-hour training course that we have, and have since I've been there. And since that time, you know, so far this year, knock on wood, our incident rate is less than one half of the national average.

Our reward for that is that MSHA has tripled the number of citations that we have received. The improvement took place first, and then the citations increased. And, frankly, I just don't understand that.

The latest example is that there's a requirement where you have to guard moving parts anywhere where any employee can reach them. We have a standard rule on conveyors and on return idlers, the idlers underneath the conveyor, that no matter where they are, we put guards around them.

We recently received a citation on a conveyor that has had this guard on it for 10 years. The inspector took a shovel, and because he could take the tip of the shovel, stand on his toes, and insert the tip of the shovel between the guard and the belt, 10 feet off the ground, he issued a citation.

I know of another operator who was issued an S&S citation, which is a very severe thing, because a superintendent had broken glass in a picture on his wall in his office. I mean, it's so frustrating. I truly believe that their hearts are, they're trying to be in the right place.

But when it's that sort of thing, where they're not focusing their resources where it needs to be done, I think it's fair to say in any operation or any industry, there are some folks out there that need to do a hell of a lot better than they are. That's where we need them to focus their efforts. We really do. And I think it would be much better for the employees and everybody.

Chairman Ballenger. Well, one thing that was mentioned by several of you is the inconsistency of training, or the inconsistency of enforcement of training. Don't all of these go through the same school in West Virginia that the Senator set up there, or am I mistaken in that thought?

[Laughter.]

Am I wrong?

Mr. Miles. Yes, I think they do, Mr. Chairman, but mines are very, very different. Precious metal mines are vastly different in the extraction process. You have oxide ores and refractory ores. To get the gold out of a refractory ore requires a much different process than the oxide ores and they don't do the different training that comes along there.

And I'll give you an example of what happened to us with one of these things that they were concerned about the increase in fatalities in the metal/non-metal sector in 1997. So they sent inspectors out to the West from West Virginia, some coal inspectors who had never been west of the Mississippi, never seen a haul truck the size of what we have. In fact, the largest truck this inspector stated he had seen before was an 80-tonner. We use 190 and 220-ton trucks, more than double the size.

He literally shut down part of our fleet because he did not think it had a guard on the truck, which indeed it had, and so our only recourse was to immediately ask for an expedited hearing, take it to court, and get the citation thrown out. But he shut down a fleet by his lack of knowledge of what was going on in the western mining community.

And again, just a waste of resources, a waste of our time and efforts to fight it. And the other point going along with it, we hadn't had a fatality. We haven't had a fatality in my history at Newmont Gold at all of our 20-some mines. And so, you know, they're putting the resource in the wrong place again.

Chairman Ballenger. Ms. Woolsey.

Ms. Woolsey. Thank you, Mr. Chairman. Mr. Chairman, I want to thank you for this panel. These witnesses are so knowledgeable and, obviously know their industries. I wasn't there, but our ranking Member might remember that we did have a panel on mining a few years back.

And when I asked the representative on that panel from the Heritage Foundation if he'd ever been in a mine, after he was telling us exactly what we should be doing on mining safety, he said, no, he'd never been in a mine. So I'm assuming, I mean, that every one of you knows what being in a mine is like. I don't, but I'm trusting you do.

I think all of this testimony has been very, very meaningful, particularly the need to have current standards and current practices. But something I heard that Mr. McGrath said, I'm going to ask Mr. Gomez, Mr. Snyder, and Mr. Main to respond to. It was his conclusion that he would urge Congress to remove the restrictions on MSHA's enforcement powers over training requirements. That there was a restriction which has been on the books now for 17 years. I'd like to know how that has impacted the industry, and your experience with that. Starting with you, Mr. Gomez.

Mr. Gomez. I mentioned _

Chairman Ballenger. Would you pull the mike over, please?

Mr. Gomez. I mentioned it somewhat in my presentation. I didn't mention 1981, I just mentioned that 9,000, actually, it's closer to 9,300, of the 10,800 or 11,000 mines under metal and non-metal's jurisdiction, we are prohibited from spending any resource or any money toward the enforcement. As Kim pointed out, we're still required to do it and the Act still requires them to do it, but we do not enforce that provision of the Mine Act. I'm retired, so it's no longer we. MSHA does not enforce the provisions of the training act.

In addition to that, Mr. Chairman, for your initial question, most states do not permit MSHA to look at the comp records. I'm just dying to answer that question because I have experience there. But we are prohibited from spending any resource.

Ms. Woolsey. And the cause, the effect of that?

Mr. Gomez. The effect of that is, as Fred pointed out and as I pointed out, there's a high percentage of our fatal accidents and injuries occurring in the part of the industry where we are not enforcing that. I also said in my presentation that certainly a lot of those companies train. But the fact remains that that's where the injuries are presently occurring.

Ms. Woolsey. Thank you. Mr. Snyder.

Mr. Snyder. I've been a member of regional, national and international, publicly and privately held companies in the mining industries. All of those that I'm familiar with who are members of the NSA conduct training programs. There is no question that I'm a firm believer in anything can be improved and should be improved. A lot of them do a great job.

The National Stone Association and our members are not against training. What we are scared to death of is that MSHA will run the training regulations like they do everything else, and you've heard some of the horror stories of the inconsistency with those sort of things.

We have been trying diligently, we have put all of our professionals together, and we have put together a draft of regulations on training. We have submitted them to MSHA. We have yet to hear back from them on any comments.

Ms. Woolsey. How long ago?

Mr. Snyder. It was in February. And, although I was not a participant in those meetings, my understanding is that the air was almost, well thank you very much but we're going to do what we want to do, and if you don't like it you can take us to court. That scares us.

Frankly, our team in the industry is putting these things together. They're still working on it. We're still waiting for feedback from MSHA on how they would do it. And once they are done, regardless of what happens inside the Beltway, the next step is that NSA is going to have all of its members implement that training program so that we have a high standard amongst all our members. And we will have every one of our board of directors sign off on that implementation.

So the characterizations in the paper are incorrect. There are rogue operators out there, and we think they should be taken care of, frankly. That's part of our problem. Spend the resources on those folks who are doing the job below standard. That's what should be done. That's it.

Ms. Woolsey. Okay. I hear you. Mr. Main.

Mr. Main. Yes, I covered that point in my testimony, but I didn't have time to go over it. But what you'll find, I think, is that as has been earlier pointed out, there's been over 600 miners that have died in this sector of the industry, as I understand it, since the rider went into effect. And I think that should be alarming to anyone.

What's at stake here is the right for miners to have entitlement to training. And what's been blocked here is their ability to get that. I'll give you an example. If I'm a miner, and I wind up at one of these facilities, they put me on pace equipment. I don't know how to operate it, but they say go do it, and I say that there's a law here that says I should be trained. I can say, you should be training me to do this job, or you should have trained me before I came on here. That miner can't call MSHA, make a complaint, and have MSHA come out there and enforce that standard.

All miners are not created equal, for whatever reason, under this act, and certain miners are very disadvantaged by not having the luxury of being trained to prevent themselves from being killed on the job. And I think that's something that needs to be corrected.

I would also point out that MSHA has revised their training program, at the request of both labor and industry. We've been urging them to do that. And they are in the current process of restructuring the program, whereby it will be under the training and education wing, as opposed to the enforcement wing.

I think they've done a lot of dialogue with us, with the industry, and with a lot of other folks to do that. This is not going to fix this problem, but I think it's going to go a long way to help develop a better education, training model in the mining industry.

Ms. Woolsey. So the one thing I heard loud and clear from every single one of you is that our goal is to save lives and protect the health of workers in the mining industry. So we all have to work together, and certainly I look forward to improving what's not right and doing it in a way that works in modern days. But really the bottom line is that we want to take care of our workers. The incentive from MSHA shouldn't be what motivates any employer to have the safest conditions possible for their workers.

And in having said that, I'd like to suggest that the Federal government, that the Capitol does something about this chair I'm sitting on.

[Laughter.]

Because it is absolutely dangerous. If leaned back, I'd be on the floor. So I yield back my time.

Chairman Ballenger. Okay. Mr. Fawell.

Mr. Fawell. Thank you. I think we should look into that matter of the chair. Mr. Snyder, you testified that there was a significant and substantial violation brought against your firm because of broken glass in a picture?

Mr. Snyder. Yes. It wasn't my firm. It was somebody else in the mining industry. But that's right. I think Dr. Miles could attest to that, but in fact that's right. An S&S was issued because in an office, on a picture hanging on a wall, there was a crack. No, go ahead.

Mr. Miles. Yes, that was at our facility and I was with the inspector when he walked past it. And it was a little corner, probably, maybe five or six inches square in the corner. The glass was cracked and leaning back against the picture in the frame. And he mentioned it casually when he was visiting. He came back a month later and wrote us an S&S citation on the picture frame.

Mr. Fawell. What was the fine?

Mr. Miles. Well, we conferenced the citation, and got them to change the designation from S&S to non-S&S, and worked with them to reduce that. But it was still a violation that we will pay. We haven't got the assessment yet, but that will probably be a 50-dollar fine for a non-S&S citation.

Mr. Fawell. I get the impression, maybe it isn't correct, that there is in general, inept performance by the inspectors of MSHA. Is that fair to say, or are these just several isolated cases?

Mr. Miles. No, in my view, and I gave you the example of the inspector coming from West Virginia on our haul trucks that literally shut down a fleet that he didn't understand. There are numerous, I mean, almost day-to-day occurrences. MSHA was trying to reduce the number of fatalities, make people more aware of it. They sent a fellow from the Pittsburgh Technical Center out to our mine, again a mine that hasn't had any fatalities since I've been associated with the organization. To tell us how to reduce these numbers of fatalities. He'd never been west of Indiana. He'd never worked in a mine.

And we tried to help him out and give him some information to help him. We allowed him to talk to all of our employees. While he was talking, one of our hourly employees, looked at him and said, have you ever worked in a mine. And the poor fellow said, why do you ask. And he said, I was just curious. And the guy said well, matter of fact, no. And the guy stood up and said, I knew it, and got up and walked out. And the other miners kind of ridiculed the fellow. It's a very sad situation that they're placed in sometimes.

Mr. Fawell. What about the rest of you. Is there anybody here who wants to defend the basic operation of the inspectors? I assume there must be.

Mr. Miles. You asked, are they inept. You know, that's not what I'm saying at all. It seems like something happens somewhere and people start running around furiously. That is the best way I can describe it. Somebody seems to get word from some administrative office that we have more injuries or a higher incident rate, or something like that. And so the answer to that is to go out and write citations that you haven't written before. I can't prove that's true, but that appears to be what happens. And I think that's part of the frustration. Frankly, I think a lot of the inspectors are as frustrated as we are, when it really boils down to it.

Mr. Fawell. Are there others, any of you who would just end the operation of the inspectors here?

Mr. Correll. I think there are strengths and weaknesses in the agency, just like there are in industry, as far as personalities and ineptitude. And I do agree with Mr. Snyder, there is some frustration. I think the agency has the same frustration that the industry has.

When you take a one-size-fits-all approach, a caput approach, to apply regulations that have been around forever, and that's the only tools they have, there's a mindset that says, if we write more citations, we must improve safety. And, sir, I see that played out every day. And it's over and over and over. And I think that's what I see. And I would not attack the agency, or the people in the agency. I think they're trying hard to do a good job, but they just keep doing the same thing over and over and most mining companies have moved beyond that. And they keep drawing us back to the same standard.

Mr. Fawell. Yes.

Mr. Gomez. Let me make a comment, as they say, I am one or I used to be one.

Chairman Ballenger. Pull the mike up close.

Mr. Gomez. Let us not forget that a couple of years ago, most of this entire industry came to the agency's defense and said, we like them the way they are. And certainly we've heard about isolated incidents. If you want to know what I think about the mine inspectors in MSHA, I think they do a pretty good job.

And there are isolated incidents, and Mr. Miles knows that if broken glass is written on a picture frame, there are people within that agency, that if it is brought to their attention, that would be corrected. I can't help myself, so I have to say the majority of the people that work in that agency do a pretty good job.

Mr. Main. If I may, I think there are a couple of points. I'd like to see this broken-glass picture, because I think it's hard for a lot of us around to believe, although I don't dispute it may have happened. But a couple key points to understand are that a lot of people work in the agency, and everybody doesn't think the same way.

The main group of inspectors has been around for years. I think they're a very seasoned bunch of folks that do, on a daily basis, a fine job. People may not like miners or the industry sometimes, or what they do or how they see things.

But if you look at the statistical data, what it tells you is there are very few violations like that even being considered in the batch. The number of violations has dropped enormously. The last figures that I saw last year of the amount of fines was half of what it was two years before. The S&S rate in the coal mining industry, and that's very troubling for us about what that means, has dropped from about 70 percent of the total violations in 1988 to around 40 percent last year, which means there are a lot of violations not considered even serious any more. That's because of another problem dealing with the commission interpretations.

But we're having problems getting serious violations like that. For instance, pre-shift examinations of mines, which are inspections before miners go into the mine, are not being taken care of. Violations like a panic bar on the scoop. A panic bar is an emergency shut-off device so that before you crush your hand into a mine or rougher in the rib, you can hit that what we call the panic bar and shut the machine down. There are conditions like that considered non-S&S.

So you're going to see some discussion on both sides of these issues, but I think that overall, the agency is pretty sound out there.

Mr. Fawell. Fine. Thank you.

Chairman Ballenger. Major?

Mr. Owens. Gentlemen, I apologize for having to leave and not hearing all of the testimony. But I had to make a statement on the floor. I did read most of the testimony, and I would like to say from the outset that there were some sweeping assertions about OSHA policy and procedures made in the testimony. I would ask unanimous consent that Mr. McAteer be able to submit for the record some written responses to these accusations.

Chairman Ballenger. Without objection. It really is our intent to have him come. I'm sorry, but there were two slots for you and we will be glad to have him. But I think everybody would like to have him react to this. So he's definitely _

Mr. Owens. Is there a commitment to have an additional hearing where he would be invited to appear?

Chairman Ballenger. Yes, sir.

Mr. Owens. Thank you. Mr. Main was saying something a few minutes ago. Some of the witnesses have said that MSHA should reduce the number and scope of investigations, and should redirect priorities away from coal, that too much emphasis is placed on coal. What is your response to that, Mr. Main?

Mr. Main. Well, if you asked at the coal mines where our miners work, would you like to give up some of your inspections at the mines, I think the answer would be absolutely no. And I think the reason for that is that it's sort of like walking the beats on the streets. That's what's helped keep a lot of the safe operations safe. And when you remove that, you run the risk of a deterioration of conditions at that mine by virtue of letting the system go on its own.

I would argue very strongly against the change of the regular inspection schedule at mines, because I think that's what got those numbers down. That system's been in place for 20-some years, and just look at the statistics that it has produced.

Mr. Owens. I have a quote from the Louisville Courier-Journal. "Coal is an outlaw industry. It is now and it always has been. Coal is the closest thing to brute, unrepentant, late-19th Century capitalism that we have left in American life." I don't think we have anybody from Kentucky here, or Louisville. Maybe some of you live within the area served by this newspaper, but would some of the owners care to comment on that characterization of the coal industry? Yes.

Mr. Shanks. Yes, Mr. Owens, our company has coal-mining operations in Kentucky, and I think I could speak on behalf of our 4,800 employees that they would all categorically disagree with whoever wrote that comment for the Louisville Courier-Journal. Our employees are proud to be part of the coal industry, and proud to be a part of a company and an industry that does place safety as a high standard.

As I mentioned while you were out of the room, if there are illegal activities ongoing in dust sampling in coal mines in Kentucky or any other state, our association and our company certainly condemn those activities. And we'd like to point out for you that MSHA certainly has all the resources it needs to investigate and prosecute any type of activity like that.

Mr. Owens. You think the industry has an image problem that's just not true?

Mr. Shanks. Well, I've not read that series of articles that you've referenced, so I really can't speak about the details in that, or what the motives were for the author to devise that particular phrase.

Mr. Owens. Well, some of the statistics that I cited about the coal industry, in terms of continuing problems in black-lung disease, as well as high death rate, what is your comment on those statistics?

Mr. Shanks. Well, I'm not an expert on black lung statistics. We would be happy to provide extensive information for you and the rest of the subcommittee on that topic, but I'm fairly confident that you have seen a dramatic decrease in the incidence of black lung over the last 25 years. Not only has the Mine Act been a part of that success, but also the coal operators and the employees have all participated and have all been a part of the decrease in black lung in our industry.

Mr. Owens. Mr. Shanks, was it your contention that mine operators are not responsible for the occupational illnesses that are suffered by miners, and that operator's should not track former workers because they are of no concern?

Mr. Shanks. No, that was not mine.

Mr. Owens. Mr. Shanks?

Mr. Shanks. No, that was not my statement.

Mr. Owens. It was in your prepared statement, though, I think. It was not in your written statement?

Mr. Shanks. Would you repeat your question?

Mr. Owens. Is it your contention that mine operators are not responsible for the occupational illnesses suffered by miners and should not track former workers after they leave?

Mr. Shanks. Well, our intention, our purpose for putting that in the written testimony was to focus MSHA and the government's efforts on active employees. And that the definitions of occupational illness are quite confusing. And that is the main driver behind the 3,000 additional pieces of information that Mr. Main referenced in his testimony, of why those who have come forward, that there was a period of amnesty offered by MSHA. Many coal operators are confused by what is defined as an occupational illness and what is not. And so many companies took the approach that since they may get caught in the future by not being able to understand what the definition is, then they would go ahead and supply _

Mr. Owens. Thank you.

Mr. Shanks. Whatever remotely might be _

Mr. Owens. Mr. Main, maybe it's been answered already, but how do you respond to the allegation that MSHA is circumventing the rule-making process. Did anybody address that while I was out?

Mr. Main. Well, as I pointed out in my testimony, I think the miners look at the whole process far differently. And one case that I used as an example is in 1987, 1988 the Reagan administration appointed a committee, which recommended that the government regulate diesel particular matter coming from diesel engines in coal mines, in confined spaces. It's now 1998. We're still waiting on those rules.

The regulatory process, in their minds, is drug out so far and so long that many miners never see the benefit of hazards that are corrected.

Mr. Owens. Thank you.

Chairman Ballenger. If I may, I'll turn this doodad off and then open it up. One thing I was wondering, if your organization has sent to MSHA a request for some sort of regulations and training, have you received no answer? If you'd give us a copy of what you sent, maybe if I put a letter on top of it, asking to move, it might help you a little bit in getting that moved. Because it just doesn't make sense to me that they haven't done something, and you've given them something to work with. So it should be fairly easy.

Mr. Snyder. I'm sorry. What was proposed is included in my written statement as Attachment 3.

Chairman Ballenger. That's great. One thing I would like to say too, is that we found out in OSHA inspections, when the big disaster of that Connecticut building collapsed about eight or 10 years ago, that it turned out to have been inspected by OSHA, but the inspectors didn't know anything about construction. I mean major construction like that. They were all used to inspecting manufacturing plants and so forth. And a great effort was made at that time to see if we couldn't aim certain inspectors to have special training.

Now, I don't know how many gold mines there are. But somewhere along the line, if you could figure out a percentage of the number of coal mines and gold mines, maybe they could have some special training for a couple of inspectors so that they would know what the difference between a big truck and a little truck is.

[Laughter.]

Let me just also say that a number of witnesses today have spoken about mandatory inspections. We ran into this before. Twice yearly for service mines, four times for underground operations. That is pretty well a cut-and-dried situation. And I still go back to that mine in my home district, where they've never had an accident in 10 years, and yet the rules and regulations say that they are going to have this many inspections, come hell or high water. And yet you go somewhere where a lot of accidents may have occurred, and they have the same inspection rate as somebody that never had had any accidents. Does anybody want to explain? Especially you, Mr. Gomez. Does it have to be that way?

Mr. Gomez. Let me say first of all, the Mine Act requires that we inspect surface operations twice a year and underground operations four times a year. Let me say further that we cheat on that a little bit with intermittent operations, and that's a large number of our operations. On the intermittent operations that only work less than nine months a year, we inspect one in two, half of that number. But that, based on the Mine Act, is what we do.

Chairman Ballenger. It is written into the Mine Act?

Mr. Gomez. Yes. Four and two.

Chairman Ballenger. And do you? Yes sir. I saw a finger go up.

Mr. Correll. The Mine Act does specifically talk about inspection of the mine in its entirety. Underground four times a year, surface two, as you pointed out, sir. But it's my understanding, and it's always been my feeling, that the Mine Act does not define the term inspection, and I believe that it could be viewed as something other than walking every entryway, every crosscut, every belt. We have miles and miles of conveyor belting at a large, open-pit mine such as ours, and that consumes a great deal of time.

And I think the question that we face in our business is the balance of resources. How much time is reasonable to find one violation a day of questionable merit compared to the weeks and weeks of inspection. That's what's in my testimony. That's why I wanted to interject that.

Mr. Gomez. Yes, I'm not sure, Mr. Chairman. We inspect each and every mine in its entirety. In addition to that, the agency has a policy on health sampling, for example. If we come to a property that we haven't found an overexposure, we would only sample that property once every five years. And here I am saying we again, and it's not we.

[Laughter.]

So bear with me. It's a hard change to make.

Chairman Ballenger. Some of us old fellows are that way.

[Laughter.]

Mr. Gomez. It's an adjustment that I'm going through. But nevertheless, a number of those type of adjustments have been made in metal and non-metal. Some of the things that they have done over the years are, for example, in the late 1980s, 900 hours per inspector applied to what we call a regular inspection, or what the agency calls a regular inspection. 1,200 hours a year for inspectors doing enforcement work.

Now, that is 1,200 hours of regular inspection time and 1,400 hours of enforcement work. So there has been other direction taken. Four and two, certainly there are areas where that can be looked at. How much resources that will save, but presently it's obviously not being done. But nevertheless that is an area that can be looked at. But we do try to do twos and fours and, as I mentioned in my statement, 1996 was the first year that we really, really dropped way down.

Ms. Woolsey. And if the Chairman would yield a second.

Chairman Ballenger. Sure.

Ms. Woolsey. I don't think we can overlook the cause and effect. I mean, I was a human resources professional for 22 years in manufacturing before I got here. And there is a cause and effect between inspections and safety results. There should never be too much of a good thing when it comes to good results.

So maybe what we should be looking at is where there are frequent inspections, there is a safe environment. It may be that one causes the other. I mean, it's not just because it's safe, that we don't need to be there, because we know what it was like many years ago in the mining industry. To some extent, knowing that the inspector's coming makes you do what you're supposed to do.

Chairman Ballenger. Mr. Drew, are you being ignored? Fire away.

Mr. Drew. I have to respond to that by saying that in the cement industry, we run our operations 365 days a year, 24 hours a day. Four to 10 inspection days a year do not make a safe operation. It's the systems that are in place every day, the insistence on management and the commitment from management on safety that make sure that you have safe operations.

Just reflecting back on one of our plants in Kansas City. That plant had, at the time last year, gone through about 900 days without a lost-time accident. The inspector showed up for his normal inspection, and it was the worse inspection we had. The prior inspection we had one citation. This one we ended up with, I think, 22.

And the inspector decided that the roadway to the plant was unsafe, the same roadway that every inspector coming into the plant had used for 30 years. He said you have to fix it. So we ended up having to argue over this and bringing in Doyle Faith from the sixth district. We had to spend our time over this issue, when we said, where are all of our resources being spent? We had to bring in Doyle, the supervisor and inspector. We had to spend our time over this issue.

What we're saying is, let's focus the efforts where they should be focused, and not go and pick on certain things that are unnecessary. The roadway was safe, and by the time we had made a fix, or the fix that was requested, the employees said that these boulders we put in the roadway are going to kill us.

Mr. Miles. Congressman Woolsey makes a valid point though, that the inspections are beneficial. But just to show you, Congressman, at our operations in Nevada, we require every single individual in the mine to do inspections. That's 3,700 employees in Nevada out on a daily basis conducting inspections. We require the general manager of every operation to do an inspection on a frequency. The superintendents, the general foremen, the foremen. Every foreman required by MSHA is required to do a work-area inspection daily of every single work area and make a record of it.

So that when you put the enforcement-type inspection on top of that, I think that's leading a little bit to some of the problems we're talking about. And then the lengths of time that some of these go on for. For some of them, like an inspection in a facility, it's not uncommon for it to go on for several months for one inspection.

Ms. Woolsey. Well, I will respond to that. Then we can end this part of the conversation. I'm sure there could be an overreaching, but I also am sure that you couldn't tell me all of this would have been happening all along without MSHA being available and being out there. So, there is something we need to do, but we shouldn't throw out the baby with the bath water.

Chairman Ballenger. I hate to cut anybody off. But I have another committee meeting that started a half-hour ago.

Ms. Woolsey. You're late.

Chairman Ballenger. But I would like to thank all of the witnesses for coming and for your valuable time. I'm glad that we got the letter in the back. We'll send you a copy of what we send.

Mr. Correll. Mr. Chairman, in light of Representative Woolsey's comment about mining and the understanding of mining, on behalf of Cleveland Cliffs, we would invite yourself and all of your Members.

Chairman Ballenger. How far away are you?

Mr. Correll. Our corporate office is in Cleveland, and we operate mines in Minnesota and the U.P. of Michigan. We would invite any and all of you to our properties.

Chairman Ballenger. I don't usually travel in that direction. I usually go south when I'm traveling.

[Laughter.]

Chairman Ballenger. Again, let me thank you all for coming today. I think it was a very constructive discussion.

[Whereupon, at 2:52 p.m., the subcommittee adjourned subject to the call of the Chair.]